SPEAKERS CONTENTS INSERTS
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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
WEDNESDAY, APRIL 30, 1997
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:05 a.m., in room 2141, Rayburn House Office Building, Hon. Charles T. Canady (chairman of the subcommittee) presiding.
Present: Representatives Charles T. Canady, Henry J. Hyde, Bob Inglis, Ed Bryant, Bill Jenkins, Bob Barr, Asa Hutchinson, Robert C. Scott, and John Conyers, Jr.
Also present: Kathryn Lehman, chief counsel, Stephanie Goodman, minority counsel, John Ladd, counsel, Keri Harrison, counsel, and Robert J. Corry counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY [presiding]. The subcommittee will be in order.
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This morning the subcommittee will hear from witnesses on a constitutional amendment to restore Congress' power to protect the flag of the United States from physical desecration. The proposed amendment, introduced by Representative Solomon of New York and Representative Lipinski of Illinois, states simply, ''The Congress shall have power to prohibit the physical desecration of the flag of the United States.''
Last Congress, the House passed a similar proposal, House Joint Resolution 79, by a vote of 312 to 120. An amendment identical to House Joint Resolution 54 narrowly failed to pass in the Senate by a vote of 63 to 36.
In 1989, in Texas v. Johnson, the Supreme Court of the United States, by a narrow one-vote margin, invalidated the laws of 48 States in an act of Congress, depriving the people of their right to protect the most profound and revered symbol of our national identity. After the Supreme Court's decision in Johnson, the House passed the Flag Protection Act of 1989 with overwhelming support by a vote of 380 to 38. The law was specifically crafted to respond to concerns raised by the Supreme Court in Texas v. Johnson. Unfortunately, this statute was also struck down by the Supreme Court in the case of United States v. Eichman in June of 1990.
This morning we will hear from both supporters and opponents of House Joint Resolution 54. I believe, as do many of my colleagues, that the Supreme Courts' decisions that strip Congress of its authority to protect the flag from physical desecration were wrongly decided. An amendment, such as the one before us today, is the only means to restore protection for the flag of the United States.
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Before we begin, I would like to recognize several distinguished recipients of the Congressional Medal of Honor who have come here today to show their support for House Joint Resolution 54. The Medal of Honor is the Nation's highest military award for bravery awarded by the President in the name of Congress. We are honored to have with us here today: Raymond G. Davis of Stockbridge, Georgia; Carl L. Sitter of Richmond, Virginia—would you please stand as I call your names?—Hiroshi Miyamura of Gallup, New Mexico; Patrick Henry Brady of Sumner, Washington; George E. Day of Shalimar, Florida; Michael John Fitzmaurice of Hartford, South Dakota; Robert Eugene Bush of Olympia, Washington; Eugene Bennett Fluckey of Annapolis, Maryland; Richard Keith Sorenson of Reno, Nevada, and George Edward Wahlen of Roy, Utah. We welcome you; we thank you for your bravery in the service of your country, and we are highly privileged to have you with us here today. [Applause.]
Mr. CANADY. Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman, and I appreciate your calling this hearing.
We once again find ourselves considering yet another constitutional amendment. This amendment, if ratified, will, for the first time in over 200 years, reduce our First Amendment rights to free speech and expression.
The First Amendment has made this country the envy of the world. It has protected us from the religious and political upheavals that have led to the demise of numerous foreign governments; it has been a great success and not a failure. The First Amendment is our friend, not our enemy. We should, therefore, resist the political temptation to abridge this freedom for short-term gain.
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Borrowing from the words of Justice Brennan and his opinion in Texas v. Johnson, ''If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea, itself, offensive or disagreeable.'' Consistent with this opinion, we have not in this 200 years amended our Constitution to stop cross burnings, racial epithets, or pornography, despite the fact that these forms of speech are also offensive. Indeed, we have endured them and let the court of public opinion judge what is and what is not respectable expression. This is how we should approach the issue of the flag.
Considering that there are only a handful of public flag burnings in any given year, I cannot imagine why punishing three or four individuals is worth threatening a Constitution that protects an entire Nation. Furthermore, flag burning has increased every time we consider amendments or statutes prohibiting such actions and give people the specific formula for getting under our skin. We are, in effect, encouraging the behavior we're supposedly trying to prohibit. In a direct affront to the liberty interests which this country founded, H.J. Res. 54 is seeking to prohibit a form of political expression.
In today's testimony, we will hear testimony that the flag is a symbol of national unity, patriotism, and freedom. Just as the witnesses in today's hearing are free to express their love for the flag, in our free country those with contrary opinions should also be free to express their feelings in the manner they choose.
Freedom is not a popularity contest. If it were, we never would have needed a Bill of Rights. Popular speech does not need protection. Instead, our rights only come into play when there is a need to protect the unpopular speech or religion from the tyranny of the majority.
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We have already been down the road of legislation by way of patriotic chest-thumping. We can reference the World War II era Supreme Court cases on compelling school children to pledge allegiance to the flag. We got so wrapped in our drive to compel patriotism, that we lost sight of the high ideals for which our flag stands. Despite our disgust in seeing the Nazis' force their people to hail Hitler, we in this country were passing laws that forced school children to salute and say their pledge to a flag, even if such acts were against their religions.
Fortunately for the American people, the Supreme Court put an end to this coercion in the landmark case, West Virginia State Board of Education v. Barnett. Justice Jackson wrote on behalf of the majority in Barnett when he said, ''If there is any fixed star in our Constitution, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess, by word or act, their faith therein.''
Unfortunately, it does not seem that we have learned from the eloquence and clarity of Justice Jackson's opinion in Barnett. Instead, we are here poised and anxious to ''prescribe what shall be orthodox in politics and nationalism'' even though we have no business governing in a free society in this manner.
Furthermore, our proscription is unknown. The text of the resolution reads, ''Congress shall have the power to prohibit the physical desecration of the flag of the United States.'' We have no idea what desecration will entail or what will constitute a flag.
I look forward to the witnesses shedding some light on this area. The gentleman from New York, Mr. Ackerman—I remember from his floor statement last year, when we considered the last flag amendment—was extremely knowledgeable in the area of the definition of a flag. The goal of the flag desecration amendment is to protect a symbol.
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The true meaning of this symbol is best expressed by former Vietnam POW, Jim Warner, in an article entitled, ''When They Burn the Flag Back Home.'' Mr. Warner recites an experience he had while in captivity. And I'll read from his article very briefly, ''I remember one interrogation where I was shown a photograph of some Americans protesting the war by burning a flag. 'There,' the officer said. 'People in your country protest against your cause; that proves that you are wrong.' 'No,' I said, 'that proves I am right. In my country, we are not afraid of freedom even if it means that people disagree with us.' The officer was on his feet and in an instance, his face purple with rage, he smashed his fist onto the table, and screamed at me to shut up. While he was ranting, I was astonished to see the pain, compounded by fear, in his eyes. I've never forgotten that look nor have I ever forgotten the satisfaction I felt using his tool, the picture of a burning flag, against him.''
Mr. Chairman, I'm moved by Mr. Warner's expression and would like to submit his article and written testimony for the record.
[The information is in the Subcommittee files:]
Mr. SCOTT. In addition, I would like to submit testimony from the American Civil Liberties Union and the American Bar Association.
Mr. SCOTT. In conclusion, I urge that the subcommittee be guided by the words of Justice Brennan when he wrote, ''We do not consecrate the flag by punishing its desecration, for in so doing, we dilute the freedom that this cherished emblem represents.''
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I thank all of the witnesses for taking time out of their busy schedules to testify before the Subcommittee on the Constitution. This is an emotionally-charged issue with strong feelings on both sides, so I thank you for your thoughtful analysis of this issue, and I look forward to all of your testimonies. Thank you very much. Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Scott, and happy birthday.
Mr. SCOTT. Thank you. I appreciate your setting this on my birthday. [Laughter.]
Mr. CANADY. OK. We will now go to our first panel. First, to testify—I'm sorry, Mr. Hutchinson, did you have a statement?
Mr. HUTCHINSON. I just wanted to thank the chairman for conducting these hearings, and on behalf of the veterans of Arkansas and throughout the country, I want to express appreciation to the Medal of Honor winners that are here today. It is because of their interest in this issue and their strong support for the bill that I am a co-sponsor of this legislation. I'll yield back the balance of my time in order that we can hear the testimony of these witnesses. Thank you, Mr. Chairman.
Mr. CANADY. Thank you, Mr. Hutchinson.
Mr. SCOTT. Mr. Chairman, could I submit these for the record along with a written statement from Terry Anderson?
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Mr. CANADY. Without objection, it will be made a part of the record.
[The information is in the Subcommittee files:]
Mr. CANADY. Now to our first panel. First to testify will be Representative Gerald Solomon. Representative Solomon is the primary sponsor of House Joint Resolution 54 and also is chairman of the House Rules Committee.
Second to testify will be Representative David Skaggs, representing Colorado's 2nd District. Representative Skaggs is currently a member of the Appropriations Committee.
Then we will hear from Representative William Lipinski. Congressman Lipinski comes to us from Illinois' 3rd District. Mr. Lipinski is a member of the Committee on Transportation and Infrastructure and is the ranking member of the Subcommittee on Aviation and is taking a leadership role in pushing for the passage of this amendment.
Also from Illinois will be Representative John Shimkus representing the 20th District. Representative Shimkus currently serves on the Commerce Committee, and is also a major in the Army Reserves.
We will then hear from Representative Gary Ackerman. Representative Ackerman represents the 5th District of New York and serves on the Banking and Financial Services Committee and the International Relations Committee.
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Closing out our first panel will be Representative Martin Frost representing the 24th District of Texas. Representative Frost is currently a member of the House Rules Committee.
Gentleman, we welcome all of you here today. Without objection, your statements will be—in their entirety—will be included in the hearing record. We would ask, to the extent possible, that you try to limit your remarks to 5 minutes.
Mr. Solomon.
STATEMENT OF HON. GERALD B.H. SOLOMON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Mr. SOLOMON. Chairman, thank you very, very much, Chairman Canady and certainly Mr. Scott, and a good friend, Mr. Hutchinson, for inviting me here today to testify on my flag protection amendment, along with the other major sponsors that are here with me today: Congressman Lipinski, Congressman Frost, and Congressman Shimkus, who has been delayed but will be here shortly.
I also want to commend Mr. Canady and the over 270 other co-sponsors of this resolution—over 270. I think we had 274 when we walked in the door here this morning which is 20 more than we had in the last Congress at this point in the process and when this amendment eventually passed the House overwhelmingly. And let me add this, Mr. Chairman: with such good people on our side, such as the Medal of Honor winners that you see sitting beside me that you just introduced and this school class from New Jersey. They are going to have some very, very interesting testimony today I just cannot wait to present this amendment, first on the House floor, and then to the States for ratification.
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But first, with your indulgence, Mr. Chairman, I would like to tell you why I think this amendment is so terribly important. It is important for many reasons. First of all, the overwhelming majority of the American people support this amendment. In Congress, it has won the support of members from both side of the aisle, in both chambers. The presence of my good friend, Bill Lipinski, next to me today, is proof of this bipartisan support.
And finally, and this is maybe even more important, I am joined by constitutional scholars in saying that this amendment actually strengthens our First Amendment freedoms, and I think we should pay attention to that. I emphasize that, Mr. Chairman, because some Americans have raised questions about our fundamental freedoms of speech and expression. I have the same concerns they do, and they deserve some straight answers.
Now I am not going to spend too much time paying tribute to the flag here. I'm sure it's safe to say that respect for the flag is something everyone in this room has, even those who might oppose our amendment here today. Americans have always felt that way about their flag, and that's why there is so much precedent for what we're doing here today.
Some critics might say that the Supreme Court has spoken on this matter, and that's that. Well, that's just not true. In the history of the Supreme Court, few members guarded the First Amendment so zealously as Justice Hugo Black, who was a liberal, and Chief Justice Earl Warren, who was a liberal. Both stated forcefully that there is no First Amendment problem with banning flag desecration, and they also believe that nothing in the Constitution prevented Congress on individual States from enacting laws to prohibit the physical desecration of the American flag. What we seek today is not an amendment to ban flag desecration, but it is an amendment to allow Congress to make that decision and to apply penalties if people were convicted of it.
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Some of you may point out that this amendment differs from the one I offered in the last Congress, and you are right. In the 104th Congress, the House overwhelmingly voted 312—remember, we only needed 290—to 120 to allow Congress and the States to prohibit the physical desecration of the American flag. Unfortunately, that amendment fell three votes short over in the other body, the Senate, and while I support enabling both Congress and the States to prohibit flag desecration, a few Members expressed their concern—including some on your committee, Mr. Chairman—that giving the States this power could lead to 50 very diverse laws on the topic which could be confusing.
While I do not have those concerns myself, I worked with this amendment's co-sponsors, all 270 of them, and the members of the Citizens Flag Alliance to rewrite the amendment to address those concerns, and only—and this is very important—only empower Congress to prohibit flag desecration. It is entirely appropriate to draft the amendment in this way. It is, after all, the American flag, our Nation's flag, that we are discussing. The Federal Government should be the one to make laws protecting it. I know this will relieve many of those who raised this concern in the past. I think, Charlie Stenholm from Texas, who is a good patriotic American, voted against this the last time for that very reason. We have corrected that, and now he is a co-sponsor of this legislation.
And physical desecration does not only include flag burning, Mr. Chairman, it also includes the outrageous acts of people defecating on the flag; that's right, actually treating our flag like it was nothing more than toilet paper or a rag. You will hear a witness testify more about that later today.
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One vote, I repeat, one vote in a 5 to 4 decision turned the courts back on the tradition of Justice Black and Chief Justice Warren, and all of a sudden flag burning became expression protected by the First Amendment, but the very analysis of that slim majority did not support that conclusion. The Court said that the Government cannot prohibit the expression of any idea just because society finds that idea offensive or disagreeable.
But the Texas State law, overturned in that 1989 decision, did not suppress any idea at all. Look at it this way: what idea does burning the flag communicate? What idea does defecating on the flag communicate? What thought does it express? Well, obviously, none. Under that Texas statute, and others like it, no one was required to worship the flag or was prevented from speaking out against the flag or about the flag or even prevented from insulting the flag verbally. It only said they could not physically desecrate that flag.
After all, everyone understands that no right is absolute, and certainly, you members of the Judiciary Committee know that to be true. We cannot yell fire in a crowded theater; we cannot holler obscenities on the corner of a residential neighborhood in the middle of the night and not get arrested for disturbing the piece; and if I don't like someone, I can say so, but I cannot express my dislike by punching him in the nose. And when my dislikes go from thoughts or words to action, well, then I have crossed the line the Supreme Court, itself, has drawn in the sand over and over and over again.
The finest constitutional minds in the country, including Judge Robert Bork and legal scholars Stephen Presser and Richard Parker, tell us that this is not a First Amendment issue. They will tell you that any society, to survive, there has to be some common basic rules of civility and respect which we all can live with. Every viable society has to be able to say, ''This you shall not do. We, as a community, find this conduct highly offensive.'' The only other alternative is chaos and fragmentation. This is true even in a society as pluralistic and diverse as ours. In such a society, it is all the more important to protect the most important symbol of unity that we have in this country; and what's more important than Old Glory, Mr. Chairman? Our flag, and all it represents, is what makes us American.
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You know, not long ago, we celebrated the 50th anniversary of Iwo Jima, and we all know that the Marines, which I was proud to have served in, did not run up a copy of the Constitution up a pole on Mount Suribachi. When some tragedy occurs, we do not fly the Presidential Seal at half-mast from our Federal buildings; we do not salute the Liberty Bell. And so it has been all across this country, in this world, Mr. Chairman. Whether it's been Manila or Paris or Kuwait City, whenever American troops have liberated cities from oppressors, they have been greeted by grateful people waving, not the Constitution, not the Presidential Seal, not big macs or blue jeans, but they were waving the American flag.
And that love of the flag certainly is not dead in our country today. Eighty percent of the American people want this amendment passed; they want it to become a part of the Constitution. Over 100 national, civic, fraternal, and veterans' organizations have been working since 1989 for its ratification. And furthermore—and this should speak to all of us—49 States have asked Congress to pass this amendment, 49. That's 11 more than the 38 needed to ratify it. When was the last time any amendment, regardless of whether or not it was ratified, garnered such broad-based support?
Mr. Chairman, I am pleased that consensus and reasoned arguments are going to enact this amendment as opposed to the passions and politics of the moment. The grassroots movement which has gathered steam over the past 8 years is a testament to what we're trying to do here today.
For those who worry how ratifying this amendment would lead our Nation down a slippery slope, I can assure you that the difficult process—which, Mr. Scott, you spoke to before—which our Founding Fathers created to amend the Constitution, will prevent a floodgate of amendments from happening, just as it has blocked frivolous amendments for more than 200 years.
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And so to sum up, Mr. Chairman—I'm sorry to have taken so long—we are not banning desecration of the flag; we are only giving Congress the right to do so, a right that it really always has had up until 8 years ago. Not only does our amendment enhance, rather than threaten, the First Amendment, but burning the flag is not speech; it is not expression; it is a hateful tantrum, and to defecate on the flag is even worse.
Finally, the American people, and the constituents of every member in this room, want us to pass this amendment. So, Mr. Chairman let's put this out to the American people. Whether you're for this amendment or against it, at least give the American people the ability to speak. Let the States have a chance to ratify it. If the American people don't want it, you won't get the three-quarters necessary to make this a part of the Constitution.
So, again, I thank you. I understand, Mr. Chairman, that this will go to Mr. Hyde's full committee later on this month and that in the week of June 9, which will be just preceding Flag Day on June 14, that we will have this scheduled on the floor for a final vote, and we deeply appreciate all of your help in doing that. Thank you, Mr. Chairman.
[The prepared statement of Mr. Solomon follows:]
PREPARED STATEMENT OF HON. GERALD B.H. SOLOMON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Thank you very much Chairman Canady and panel members for inviting me here today to testify on the Flag Protection Amendment.
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I also want to commend Mr. Canady and the over 270 other co-sponsors of this joint resolution. And let me add this: with such good people on my side, I cannot wait to present this amendment . . . first on the House floor . . . and then to the states for ratification.
But first, with your indulgence Mr. Chairman, I would like to tell you why I think this amendment is so important.
It is important for many reasons. First of all, the overwhelming majority of Americans support this amendment.
In Congress, it has won the support of members from both sides of the aisle, in both chambers. The presence of my good friend Bill Lipinski next to me today is proof of that.
And finally . . . and this may be even more important . . . I am joined by constitutional scholars in saying this amendment actually strengthens our First Amendment freedoms.
I emphasize that, Mr. Chairman because some Americans have raised questions about our fundamental freedoms of speech and expression. I have the same concerns they do, and they deserve some straight answers.
Now, I am not going to spend too much time paying tribute to the flag. I am sure it's safe to say that respect for the flag is something everyone in this room shares.
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Americans have always felt that way about their flag, and that's why there is so much precedent for what we're doing here today.
Some critics might say that the Supreme Court has spoken on this matter, and that's that! Well, not quite.
In the history of the Supreme Court, few members guarded the First Amendment so jealously as Justice Hugo Black and Chief Justice Earl Warren. Both stated forcefully that there is no First Amendment problem with banning flag desecration.
And they also believed that nothing in the Constitution prevented individual states from enacting laws to prohibit the physical desecration of the American flag!
What we seek today is not an amendment to ban flag desecration . . . but an amendment to allow Congress to make that decision.
Some of you may point out that this amendment differs from the one I offered in the last Congress. You are right. In the 104th Congress, the House overwhelmingly voted 312 to 120 to allow Congress and the States to prohibit the physical desecration of the American flag.
Unfortunately, that amendment fell three votes short in the Senate. While I support enabling both Congress and the States to prohibit flag desecration, a few members expressed their concern that giving the States this power could lead to 50 very diverse laws on the topic. While I do not have those concerns myself, I worked with this amendment's cosponsors and the members of the Citizens Flag Alliance to rewrite the Amendment to address those concerns and only empower Congress to prohibit flag desecration.
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It is entirely appropriate to draft the amendment in this way. It is after all, the American flag—our nation's flag—that we are discussing. The federal government should be the one to make laws protecting it. I know this will relieve many of those who raised this concern in the past.
And physical desecration does not only include flag burning, it also includes the outrageous acts of people defecating on the flag—that's right, actually treating our flag like it was nothing more than toilet paper. You will hear a witness testify more about that later.
One vote . . . I repeat, one vote . . . in a 5 to 4 decision . . . turned the Court's back on the tradition of Justice Black and Chief Justice Warren, and all of a sudden flag-burning became ''expression'' protected by the First Amendment. But the very analysis of that slim majority did not support that conclusion.
The Court said that the government cannot prohibit the expression of any idea just because society finds that idea offensive or disagreeable.
But the Texas state law overturned in that 1989 decision did not suppress any idea at all.
Look at it this way. What idea does burning a flag communicate? What idea does defecating on the flag communicate? What thought does it express? Obviously, none!
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Under that Texas statute, and others like it, no one was required to worship the flag or was prevented from speaking about the flag, or even prevented from insulting the flag verbally. It only said they could not physically desecrate the flag.
After all, everyone understands that no ''right'' is absolute. We cannot yell ''fire'' in a crowded theater. We cannot holler obscenities on the corner of a residential neighborhood and not get arrested for disturbing the peace.
And if I don't like someone, I can say so, but I cannot express my dislike by punching him in the nose. When my dislike goes from thoughts, or words, to action, well, then I have crossed the line the Supreme Court itself has drawn in the sand over and over again.
The finest constitutional minds in the country . . . including Judge Robert Bork and legal scholars Stephen B. Presser and Richard D. Parker tell us that this is not a First Amendment issue.
They will tell you that for any society to survive, there has to be some common basic rules of civility and respect which we all can live with. Every viable society has to be able to say: ''This you shall not do. We, as a community, find this conduct highly offensive!''
The only other alternative is chaos and fragmentation. This is true even in a society as pluralistic and diverse as ours. In such a society, it is all the more important to protect the most important symbol of unity we have. And what's more important than Old Glory? Our flag and all it represents make us Americans.
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You know, not long ago, we celebrated the 50th anniversary of Iwo Jima, and we all know that the Marines did not run a copy of the Constitution up a pole on Mount Suribachi. When some tragedy occurs, we do not fly the Presidential Seal at half-mast from our federal buildings. We do not salute the Liberty Bell.
And so it's been across the world. Whether it's been Manila, or Paris, or Kuwait City, whenever American troops have liberated cities from oppressors, they have been greeted by grateful people waving . . . not the Constitution, not the Presidential Seal, not Big Macs or blue jeans . . . but the American flag.
And that love of the flag certainly is not dead in our own country. Eighty percent of the American people want this amendment. Over 100 national civic, fraternal and veterans organizations have been working since 1989 for its ratification.
Furthermore, forty-nine (49) states have asked Congress to pass this amendment. That's 11 more than the 38 needed to ratify it! When was the last time any amendment (regardless of whether or not it was ratified) garnered such broad-based support.
Mr. Chairman, I am pleased that consensus and reasoned arguments are going to enact this amendment, as opposed to the passions and politics of the moment. The grass-roots movement which has gathered steam over the past eight years is a testament to this.
For those who worry how ratifying this amendment would lead our nation down a slippery slope, I can assure you that the very difficult process which our Founding Fathers created to amend the Constitution will prevent a floodgate of amendments from happening, just as it has blocked frivolous amendments for more than 200 years.
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And so, to sum up . . .
We are not banning desecration of the flag. We're only giving Congress the right to do so, a right that it really always had up until the past eight years.
Not only does our amendment enhance rather than threaten the First Amendment, but burning the flag is not speech or expression, it is a hateful tantrum. And defecating on a flag is even worse.
Finally, the American people . . . and the constituents of every member in this room . . . want us to pass this amendment. So let's do it.
Mr. CANADY. Thank you, Mr. Solomon.
Mr. Skaggs.
STATEMENT OF HON. DAVID E. SKAGGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO
Mr. SKAGGS. Thank you very much, Mr. Chairman. I appreciate the committee's time this morning very much.
I can think of no better way to begin this discussion than by recalling the words of Justice Oliver Wendell Holmes, ''We should be eternally vigilant against attempts to check the expression of opinions we loathe.''
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Amending the Constitution, and for the first time really, amending the Bill of Rights, is an extremely serious matter. We should consider it only under the most compelling circumstances. Those who propose it should be obliged to meet an exacting standard of proof, proof that clearly demonstrates a serious threat or need, which goes to the fundamental structure of the National Government, which can be met only through a change in the national charter, and for which the benefits of that change clearly outweigh the costs. The proponents of this amendment cannot meet that standard.
A few zealots misguidedly believe that flag desecration will further their cause. Their idiocy provides no excuse for us to weaken the First Amendment.
While isolated acts of disrespect for the flag may test our tempers, we should not let them erode our commitment to freedom of speech. The First Amendment and its guarantee of free and open political expression is at the very heart of this Nation's tradition of freedom and self-government. We change it at our great peril.
We don't need to amend the Bill of Rights to show our respect for the flag. Mr. Kolbe of Arizona and I have introduced a resolution that would express in the deepest and most profound ways this Congress' respect and affection for the flag. Respect for the flag should not be mandated, especially at the expense of the First Amendment's guarantee of free speech. It cannot be mandated. That respect, to be genuine, to be a respect that truly honors the flag, cannot be a legal requirement.
As a Marine veteran of Vietnam and as an American, I have great pride in our flag. I think I understand a little bit the strong feelings of patriotism and pride in flag and country that motivate the supporters of this proposal. Unfortunately, in their understandable passion to protect the flag, they ask us to undermine the Bill of Rights.
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Our flag commands the deepest respect because it stands for a Nation and a community that is strong, strong enough to tolerate diversity and to protect the rights of those expressing unpopular views, and even expressing them on some regrettable occasions in the most offensive manner.
It is our Nation's strong commitment to those values—those values, not the particular design of our flag—that makes the United States an unparalleled model of freedom.
Our Nation was founded on the ideals of democracy and freedom—the freedom to speak our minds, to question, to criticize, to discuss freely without interference from the Government. The depth of our commitment to that freedom is tested and measured in those cases, like flag burning, where the views expressed are particularly offensive or extreme.
How do we honor the liberty for which the flag stands? By diminishing the liberty in order to protect the symbol?
Today, there's a strong movement to limit the scope and reach of Government. It's ironic that at this time some would seek to amend the First Amendment for the first time and bring Government regulation to selected forms of political expression. That would be a terrible mistake. Our Nation is strong enough to tolerate diversity and to protect the views of all citizens, even those with unpopular ideas.
What is the grave danger to the Republic that will be remedied by this amendment? There is none. What case can be made that this amendment would enhance our constitutional order? None. And absent a significant evil to be avoided or a significant improvement to be made, we should not undertake this most serious of all acts of Congress—an amendment to the Constitution.
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We've heard a lot lately about cost-benefit analysis. What about now? The costs: a real, if subtle, paring down of the rights of open and free expression; a softening up of the First Amendment, making subsequent and more damaging cuts into its protection of freedom that much easier; perhaps the prospect of years of litigation about the meaning of the terms ''flag'' and ''desecration.'' The benefits: Old Glory will be protected, even as the magnificent freedoms for which it stands are diminished.
We're given a choice: we may allow a few fools a year to tear the flag. Or we may deny them, yet in the process tear the Bill of Rights itself. A small price for protection of all liberties. An unthinkable price for their erosion.
[The prepared statement of Mr. Skaggs follows:]
PREPARED STATEMENT OF HON. DAVID E. SKAGGS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF COLORADO
I can think of no better way to begin this debate than by recalling the words of Justice Oliver Wendell Holmes: ''. . . we should be eternally vigilant against attempts to check the expression of opinions we loathe.''
Amending the Constitution, and for the first time amending the Bill of Rights, is an extremely serious matter. We should consider it only under the most compelling circumstances. Those who propose it should be obliged to meet an exacting standard of proof, proof that clearly demonstrates a serious threat or need, which goes to the fundamental structure of the national government, which can be met only through a change in the national charter, and for which the benefits of that change clearly outweigh the costs. The proponents of this amendment can not meet that standard.
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A few zealots misguidedly believe that flag desecration will further their cause. Their idiocy provides no excuse for us to weaken the First Amendment.
While isolated acts of disrespect for the flag may test our tempers, we should not let them erode our commitment to freedom of speech. The First Amendment and its guarantee of free and open political expression is at the very heart of this nations tradition of freedom and self-government. We change it at our great peril.
We do not need to amend the Bill of Rights to show our respect for the flag. Respect for the flag should not be mandated, especially at the expense of the First Amendment's guarantee of free speech. It cannot be mandated. That respect, to be genuine, to be a respect that truly honors the flag, cannot be a legal requirement. It must be flow from the natural love of our freedom-loving people for the beautiful standard of our nation and the exquisite symbol of our freedoms.
As a Marine veteran of Vietnam and an American, I have great pride in the flag. And I think I understand the strong feelings of patriotism and pride in flag and country that motivate the supporters of this proposal. Unfortunately, in their understandable passion to protect the flag, they ask us to undermine the Bill of Rights.
As a veteran and an American, I too am deeply offended by any act of disrespect to the flag, including physical desecration and flag burning. Like the proposal's supporters, I too am fiercely proud of the values and ideals that the flag symbolizes. But it would be tragic if, in our rush to prohibit disrespect to the flag, we showed greater disrespect to the Constitution.
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Our flag commands the deepest respect because it stands for a nation and community that is strong. Strong enough to tolerate diversity and to protect the rights of those expressing unpopular views, and even expressing them on some regrettable occasions in an offensive manner. It is our nation's strong commitment to those values, not the particular design of our flag, that makes the United States an unparalleled model of freedom and the greatest of all the nations.
Our nation was founded on the ideals of democracy and freedom—the freedom to speak our minds, to question, to criticize, and discuss freely without interference from the government. The depth of our commitment to that freedom is tested and measured in those cases, like flag burning, where the views expressed are offensive or extreme.
How do we honor the liberty for which the flag stands? By diminishing the liberty in order to protect the symbol?
Today there is a strong movement to limit the scope and reach of the federal government. It is ironic that at this time some would seek to amend the First Amendment for the first time and bring government regulation to selected forms of political expression. This would be a terrible mistake. Our nation is strong enough to tolerate diversity and to protect the rights of all citizens, even those with unpopular views.
The even greater irony is that a Constitutional amendment ultimately would render respect for the flag into a government mandate, and so—sadly—would contribute to its own undoing.
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What is the grave danger to the Republic that will be remedied by this amendment? There is none. What case can be made that this amendment would enhance our constitutional order? None. And, absent a significant evil to be avoided, or a significant improvement to be made, we should not undertake the most serious of all acts of Congress—an amendment to the Constitution.
We have heard a lot lately about cost-benefit analysis. What about now? The costs: a real if subtle paring down of the rights of open and free expression; a softening up of the First Amendment, making subsequent and more damaging cuts into its protection of freedom that much easier; perhaps the prospect of years of litigation about the meaning of the terms ''flag'' and ''desecration'' that will abound under this proposed amendment. The benefits: Old Glory will be protected, even as the magnificent freedoms for which it stands are diminished.
And that, Mr. Chairman, is why I would urge the Committee to reject H.J. Res. 54, and instead approve an alternative that would preserve the First Amendment while expressing deep Congressional respect and affection for the flag. That alternative is H.Con. Res. 23, which I have introduced with Mr. Kolbe and twelve other cosponsors.
That Resolution recognizes these truths:
(1) Freedom and liberty protected by the Constitution are fundamental rights of each American.
(2) The flag is an historic and revered symbol of that freedom and liberty.
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(3) Generations of Americans have fought with valor under the flag to protect the sacred values it represents.
(4) The people of the United States and their representatives in Congress should show respect and affection for the flag.
(5) The flag has been a source of inspiration for freedom-seeking people around the world.
(6) Deeply-held respect and affection for the flag have caused many to propose an amendment to the Constitution to protect the flag from desecration.
(7) An amendment to the Constitution, expanding the powers of government to prohibit offensive behavior, would entail a limitation on freedoms previously protected under the First Amendment.
Through H.Con. Res. 23, Congress can express its deep respect and affection for the flag of the United States and its abiding trust in the freedom and liberty which the flag symbolizes.
This is the best way, I believe, to show our respect for the flag.
We are given a choice. We may allow a few fools a year to tear the flag. Or we may deny them, yet in the process tear the Bill of Rights itself. A small price for protection of all liberties. An unthinkable price for their erosion.
Mr. CANADY. Thank you, Mr. Skaggs.
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Mr. Lipinski.
STATEMENT OF HON. WILLIAM O. LIPINSKI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS
Mr. LIPINSKI. Thank you, Mr. Chairman and Mr. Scott. I appreciate the opportunity to testify today.
On February 13 of this year, I joined my colleague, Congressman Gerry Solomon, in introducing H.J. Res. 54, a resolution to amend the Constitution in order to prohibit the physical desecration of the United States of America flag.
As Members of Congress, we have all taken an oath to uphold and defend the Constitution. I am sure that, as members of the House Subcommittee on the Constitution, you all take extraordinary care to protect the integrity of the Constitution. Like you, I recognize the tremendous importance of the Constitution, and I do not propose to amend it lightly. However, a constitutional amendment protecting the flag is absolutely necessary, because the courts continually declare State and Federal flag protection laws unconstitutional on the basis that the law violates the guarantees of free speech.
We must pass a constitutional amendment because we must protect the American flag. Our flag is a symbol of our freedom. In fact, it is those who have given the most for the freedoms we enjoy, our veterans, who, more than anyone else, want the right to protect their flag. The flag is a symbol of our great Nation and all that we stand for. The American flag is the one symbol that unites our national community. Although we do not come from a common heritage, religion, or ethnicity, we can always look to the flag and remember that we share certain core values that bind us together as a people.
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Our Nation's flag deserves respect, care, and protection. Willful desecration of the flag is an insult to all Americans, especially to those who have fought to uphold the flag and maintain our freedom.
There have always been some limits on the freedom of speech. Prior to 1989, when the States had flag protection statutes in effect, the American people did not complain that their freedom of speech was being unfairly restricted. In fact, a majority of the American people believe that desecration of the flag is a form of hateful speech and should not be condoned any more than any other form of hateful speech.
The flag, being the symbol of America's freedoms and ideas, ought to be protected with the same vigor with which we protect the freedoms and rights it represent. We send the wrong message to this Nation's youth if we allow our great symbol to be desecrated with impunity. Each time our flag is desecrated, its symbolism is eroded.
This is illustrated in the most recent example of flag desecration where a Wisconsin teenager defecated on an American flag and left the mess to be seen by all. Although the judge found the teenager's actions highly offensive and reprehensible, the judge dropped the charges on the basis that the Wisconsin flag protection law was unconstitutional. The teenager, who now will be punished only for the misdemeanor theft of the flag, defiantly stated that ''The United States flag does not hold any positive symbolic meaning or value to me; it is just a piece of cloth.''
However, the flag is not just piece of cloth to the millions of veterans that fought under that symbol to maintain our freedom. The flag is not just a piece of cloth to the 49 State legislators, including my home State of Illinois, who have passed memorializing resolutions asking Congress for the opportunity to ratify a constitutional amendment protecting the flag. The flag is not just a piece of cloth to the 275 Members of Congress who have co-sponsored H.J. Res. 54.
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And, again, I do not propose to amend the Constitution lightly. However, flag protection is a bipartisan issue that has strong support of the majority of Americans. I am more confident than this—I am more than confident that this amendment will overwhelmingly pass the House of Representatives like it did last Congress. Hopefully, the Senate will follow our lead and pass the amendment this time around; then the States and the American people will finally have the opportunity to restore the flag to its rightful place of honor and protection.
Again, I thank you for the opportunity to testify today. I urge you to move H.J. Res. 54 quickly through the committee process, so that the House of Representatives can vote on this important piece of legislation in the very, very near future.
[The prepared statement of Mr. Lipinski follows:]
PREPARED STATEMENT OF WILLIAM O. LIPINSKI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS
Thank you, Mr. Chairman and Mr. Scott. I appreciate the opportunity to testify today. I also commend the members of this Subcommittee for holding this hearing on an issue that is so important to so many Americans and their Members of Congress.
On February 13, 1997, I joined my colleague, Congressman Gerald Solomon, in introducing H.J. Res. 54, a resolution to amend the Constitution in order to prohibit the physical desecration of the United States flag. The proposed amendment to the Constitution reads simply that: ''The Congress shall have the power to prohibit the physical desecration of the flag of the United States.'' As Members of Congress, we have all taken an oath to uphold and defend the Constitution. I am sure that as Members of the House Subcommittee on the Constitution, you all take extraordinary care to protect the integrity of the Constitution. Like you, I recognize the tremendous importance of the Constitution and I do not propose to amend it lightly.
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However, a constitutional amendment protecting the flag is absolutely necessary because the courts continuously declare state and federal flag protection laws unconstitutional. For almost 100 years, prior to 1989, flag protection statutes existed in 48 states and the District of Columbia. However, the 1989 Supreme Court ruling in Texas v. Johnson stated that the violent and destructive act of burning, spitting, and trampling on the United States flag was a form of expression protected by the guarantees of free speech. This rule in effect nullified the existing state laws that protected the flag. Congress responded to the Supreme Court decision by passing the 1989 Flag Protection Act. Unfortunately, the Supreme Court also declared this law unconstitutional because the judges again believed that the law restricted the right of free speech. It is obvious that Congress must first pass a constitutional amendment establishing the right to protect the American flag before it can pass a law that does just that.
We must pass a constitutional amendment because we must protect the American flag. The American flag is more than just a piece of cloth. Our flag is a symbol of our freedom. In fact, it is those who have given the most for the freedoms we enjoy—our veterans—who, more than anyone, want the right to protect our flag. The flag is a symbol of our great nation and all that we stand for. No other American symbol has been as universally honored or has bestowed such honor as the flag. The American flag is the one symbol that unites our national community. Although we do not come from a common heritage, religion, or ethnicity, we can always look to the flag and remember that we share certain core values that bind us together as a people.
Our nation's flag deserves respect, care, and protection. Willful desecration of the flag is an insult to all Americans, especially to those who have fought to uphold the flag and maintain our freedom. There have always been some limits on the freedom of speech and legitimate exemptions to the guarantees granted in the First Amendment. Prior to 1989, when states had flag protection statutes in effect, the American people did not complain that their freedom of speech was being unfairly restricted. In fact, a majority of the American people believe that desecrating the flag is a form of hateful speech and should not be condoned any more than any other form of hateful speech.
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The flag, being the symbol of American freedoms and ideals, ought to be protected with the same vigor with which we protect the very freedoms and rights its represents. We send the wrong message to this nation's youth if we allow our greatest symbol to be desecrated with impunity. Each time our flag is desecrated, its symbolism is eroded. This is illustrated in the most recent example of flag desecration where a Wisconsin teenager defecated on an American flag and left the mess to be seen by all. Although the Wisconsin judge found the teenager's action ''highly offensive and reprehensible,'' the judge dropped the charges on the basis that Wisconsin's flag protection law was unconstitutional. The teenager, who now will be punished only for the misdemeanor theft of the flag, defiantly stated that ''the United States flag does not hold any positive symbolic value to me. It is just a piece of cloth.''
However, the flag is not just a piece of cloth to the millions of veterans that fought under that symbol to maintain our freedom. The flag is not just a piece of cloth to the 49 state legislatures, including my home state of Illinois, who have passed memorializing resolutions asking Congress for the opportunity to ratify a constitutional amendment protecting the flag. The flag is not just a piece of cloth to the 273 Members of Congress who have cosponsored H.J. Res. 54.
Congressman Solomon and I have assembled an impressive number of co-sponsors of our resolution to amend the Constitution to return to the American people the right to protect their flag. Again, I do not propose to amend the Constitution lightly. However, flag protection is a bi-partisan issue that has the strong support of a majority of Americans. I am more than confident that this amendment will overwhelming pass the House of Representatives, like it did last Congress. Hopefully, the Senate will follow our lead and pass the amendment this time around. Then the states, and the American people, will finally have the opportunity to restore the flag to its rightful special place of honor and protection.
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Again, thank you for the opportunity to testify today. I urge you to move H.J. Res. 54 quickly through the Committee process so that the House of Representatives can vote on this important piece of legislation in the near future.
Mr. CANADY. Thank you, Representative Lipinski.
Mr. Shimkus.
STATEMENT OF HON. JOHN M. SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS
Mr. SHIMKUS. Thank you, Mr. Chairman, Mr. Scott. It is a pleasure to testify today on the House Joint Resolution 54, the Flag Protection Amendment. Thank you for the opportunity to share my thoughts with you and your subcommittee. I strongly support the flag protection amendment.
During my campaign for office, I ran on just a few central promises. One of my promises to the voters was that I would seek out and support legislation that would protect Old Glory. I want to take this opportunity to explain why I think this legislation is right for the American people and its Federal Government.
Our diverse Nation is strong and beautiful. We are prosperous because we have worked together in the past to overcome many hardships. In the future, our Nation will continue to face hardships, and we must rise to meet those challenges. I believe that the flag protection amendment is a move in the right direction, helping to restore morality and values to this society and prepare us for the hardships of the future.
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Some say that this issue is trivial and that Congress should not waste its time on it, but I believe the exact opposite. I believe that this issue strikes at the very heart of what is wrong in America today. As a Nation, we are losing the ability to declare what is good and what is bad. We are teaching our children that they have the right to act without consideration, humanity, or respect for our national symbol and, more importantly, for each other.
The courts have made it clear that it is free speech to desecrate the flag of the United States and said that, if Congress enacts laws that protect our flag, those laws are unconstitutional. So, I ask you, if a government cannot declare what is right and wrong, how can it expect its citizenry to do the same? How can this Nation operate in a moral fashion when there is acceptance of immoral acts surrounding it?
The cornerstone of our society is based on moral standards and ethical codes of conduct. I learned those important lessons while attending West Point. I learned that even though we are different, we had to unite and work together as a unit, not as individuals. The same is true for this Nation; without morality, we are a Nation without direction or purpose. As a Nation, we must agree to have a symbol that stands above the day-to-day politics and looks beyond petty differences that so dominate our society.
As a military officer, I have come to respect our flag. When one of my classmates dies or a fellow veteran meets his end in battle, without exception, the flag is draped over his or her coffin. After he or she is laid to rest, the flag is given to the surviving spouse as a symbol of their life-long companion's dedication to our great Nation. To these Americans, the flag is more than just fabric or material; the flag comes to symbolize their husband or wife; the material becomes very special. And when someone spits on a flag or burns a flag, it hurts the families of this Nation. The longer we let this unconstructive behavior continue, the longer we alienate and infuriate American families.
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Our current structure of laws will divide America, not bring them together to face the challenges of the future. I find it sadly ironic that the people who have fought and are fighting for this great Nation are dishonored by flag desecration, and I do not believe it is too much to ask from our Nation to come together and agree not to destroy our symbol of freedom.
My father just returned from a veterans' trip to South Korea where he visited the DMZ. He went there to pay tribute to past veterans who never had the chance to return. Now it is my turn to fight for those who did not come home. We owe it to the veterans of this country and to the generations to come.
Our Constitution protects individual rights and grants Americans freedom. With this freedom comes responsibility to act with dignity and respect for others. While we are allowed to speak freely, we see restrictions on inappropriate behavior and communication in many parts of our society. For instance, you can own your automobile, but how you use it is strictly regulated. Most States even require that you have periodic safety inspections, pay property taxes on it, and wear a seatbelt when operating it. The same is true for privately-owned firearms and uncontrolled drugs. The flag of this country should be no different. Through tradition and common practice, our society has always said that a citizen could purchase a flag, but it's always owned by the American people; possession of a flag carries with it a duty to treat it with dignity and respect.
Advocates of flag desecration claim that this amendment curtails their First Amendment rights; they are wrong. We are talking about curtailing offensive behavior—behavior that many, including myself, find deeply disturbing. We're not taking away one's right to protest against the Government by words or in writing. In fact, I would say to those that need to use the flag as a form of protest, simply fly the flag upside down. By doing this, protestors can show their frustration with the flag and not offend others in the process.
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Burning the flag of the United States is not speech; it is conduct that this Nation opposes in poll after poll. The First Amendment was designed by our Founding Fathers to allow Americans to express their opinions and emotions; it was never intended to protect individuals who engage in inappropriate behavior.
Mr. Chairman, thank you for the opportunity to testify today, and I would be happy to take the questions.
[The prepared statement of Mr. Shimkus follows:]
PREPARED STATEMENT OF HON. JOHN M. SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS
Mr. Chairman it is a pleasure to testify today on H.J. Res. 54, the ''Flag Protection Amendment.'' Thank you for the opportunity to share my thoughts with you and your subcommittee. I strongly support the Flag Protection Amendment.
During my campaign for office, I ran on just a few central promises. One of my promises to the voters was that I would seek out and support legislation that would protect ''Old Glory.'' One of the first bills I cosponsored as a new member was H.J. Res. 54 and I plan on voting for this legislation on the floor of the House of Representatives in the near future. I want to take this opportunity to explain why I think this legislation is right for the American people and its federal government.
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Our diverse nation is beautiful and strong. We are prosperous because we have worked together in the past to overcome many hardships. In the future, our nation will continue to face hardships and we must rise to meet those challenges. I believe that the flag protection amendment is legislation that will help restore morality and values to this society and prepare us for the hardships of the future.
This legislation will allow the Congress to enact law that will protect the flag from desecration. Once Congress passes this Constitutional amendment and the states ratify the details of what is a flag and what is desecration will be defined. That debate is separate from our discussion today. Some say that this issue is trivial and that Congress should not waste its time on it, but I believe the exact opposite. I believe that this issue strikes at the very heart of what is wrong in America today. As a nation we are losing the ability to declare what is right and wrong. We are sacrificing the rights of the many for the satisfaction of a few. We are teaching our children that they have the right to act without consideration, humanity, or respect for our national symbol and more importantly for each other.
The courts of this nation have made clear that it is free speech to desecrate the flag of the United States and said that if Congress enacts laws that protect our flag those laws are unconstitutional. The courts of this nation have spoken and have told America that even though it is wrong to burn the flag it is a guaranteed constitutional right. So I ask you, if a government cannot declare what is right and wrong, how can it expect its citizenry to do the same? How can this nation operate in a moral fashion when there is acceptance of immoral acts surrounding it?
The cornerstone of our society is based on moral standards and ethical codes of conduct. I learned those important lessons while attending West Point. I learned that even though we were all different we had to unite and work together as a unit, not as individuals. The same is true for this nation. Without morality we are a nation without direction or purpose. As a nation we must agree to have a symbol that stands above the day-to-day politics and looks beyond petty differences that so dominate our society.
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As a military officer I have come to respect our flag. When one of my classmates dies, or a fellow veteran meets his end in battle, without exception the flag is draped over his or her coffin. After he or she is laid to rest the flag is given to the surviving spouse as a symbol of their lifelong companion's dedication to our great nation. To these Americans the flag is more than just fabric or material. The flag comes to symbolize the life of their husband or wife. The material becomes very special. And when someone spits on a flag, or burns a flag, or even defecates on the American flag it hurts the families of this nation. It hurts millions of families who lost their loved ones in battle defending this nation and all it stands for. The longer we let this unconstructive behavior continue, the longer we alienate and infuriate American families. Our current structure of laws will divide Americans, not bring them together to face the challenges of the future.
I find it sadly ironic that the people who are fighting for this great nation are dishonored in this way and I do not believe it is too much to ask our nation to come together and agree not to destroy our symbol of freedom. It is not too much to ask Americans, while we are diverse, to unite behind one symbol. We owe it to the veterans of this country and to the generations to come.
Our Constitution protects individual rights and grants Americans freedom. With this freedom comes responsibility to act with dignity and respect for others. While we are allowed to speak freely we see restrictions on inappropriate behavior and communication in many parts of society. For instance, you can own your automobile, but how you use it is strictly regulated. Most states even require that you have periodic safety inspections, pay property taxes on it, and wear a seatbelt when operating it. The same is true for privately owned firearms and controlled drugs. You cannot yell ''fire'' in a crowded movie theater. You can own the lot that your home sits on, but you can't use the property for any purpose you want. The same is true for U.S. currency, your own mailbox, and military uniforms and decorations. You can own a billboard, but what you display on it is regulated. And the same is true with the flag. Through tradition and common practice, if not the letter of the law, our society has always believed that a citizen could purchase a flag, but it was always owned by the American people. Possession of a flag carries with it a duty to treat it with dignity and respect.
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Advocates of flag desecration claim that this amendment would violate their First Amendment rights. They are wrong. We are talking about curtailing offensive behavior.
Behavior that many, including myself, find deeply disturbing. We are not taking away one's right to protest against the government by words or in writing or which causes they choose to support. Burning the flag of the United States is not speech, it is conduct that this nation opposes in poll after poll. The First Amendment was designed by our founding fathers to allow Americans to express their opinions and emotions. It was never intended to protect individuals who engage in inappropriate behavior.
Mr. CANADY. Thank you, Representative Shimkus.
Mr. Ackerman.
STATEMENT OF HON. GARY ACKERMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK
Mr. ACKERMAN. Thank you very much, Mr. Chairman.
Our Founding Fathers must be very puzzled looking down on us today, seeing us—instead of dealing with the very real challenges that face our Nation—seeing us feel this great compulsion to amend the document that underpins our democracy and to give the Congress a great new power at the expense of the people.
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What is the threat? What is the threat to our democracy? What is the crisis in the Republic? What is the challenge to our way of life? Where is our belief system threatened? Are people jumping from behind parked cars, waving and burning flags at us to prevent us from going to work, grinding our democracy to a halt?
Mr. Solomon cites that we have to do things in society to prevent chaos and to survive. Do we really all believe that we are under such a threat because of a few loose cannons?
What is the threat? The real threat is not the occasional burning of a flag, but the permanent banning of the burners. The real threat is that some of us have now mistaken the flag for a religious icon to be worshipped rather than the symbol of our freedoms that is to be cherished. Rather than mess around with the flag, they would have us mess around with the Constitution.
These rare but vile acts of desecration that have been cited by those who propose amending our basic document don't threaten anybody; we are not threatened, my colleague. We are offended. And to change the Constitution because somebody offends us is, in itself, unconscionable. Rather than fight to the death for somebody's right to disagree—even a despicable, low-life, social malcontent who has a right to disagree in an obnoxious fashion—we instead choose to react by taking away his right to protest.
Real patriots choose freedom over symbolism; that is the ultimate test of form versus substance. Why does the flag need protecting? Burning one flag or burning 1,000 flags does not destroy it. But change one word of the Constitution of this great Nation, and it will never be the same. You can't destroy a symbol. Yes, people have burnt the flag, but, Mr. Chairman, there it is again standing right in back of you. It can't be destroyed; it represents what we believe in.
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Poets and patriots will tell us that men have died for the flag, but that language, too, Mr. Chairman, is only symbolic. People don't die for symbols; they die for their belief system. Let us remind ourselves that we didn't enter World War II because the Japanese sunk a bunch of flags; there happened to have been ships filled with men tied to the other end of the flagpoles.
We love, and we honor, and we respect our flag for what it represents. It is different from all other flags—and I notice we don't make it illegal to burn someone else's flag—and that is because our flag is different. No, not because of it's shape. No, not because of design, not because of the colors. It is unique but because it represents our unique values; it represents tolerance for dissent.
And what is a dissenter? A dissenter is a social protestor who feels so strongly about an idea that he would stoop so low to try to—as someone else put it—get under our skin, and rile us up to prove his point, and have us act by making this great Nation less than it was.
Mr. Chairman, you cannot eliminate grapes by stomping on them. This action is only going to spread this dissent and cause others to go out and commit what all of us think is a horrible and vile act. Dictatorships crack down on people who burn their nation's flags, not democracies. We tolerate dissent and dissenters.
And what is a flag? Yes, it is a piece of cloth. But if we pass this amendment to the Constitution and somebody really wants to get your goat, why not take a tablecloth with stars and stripes, not a flag? It's a tablecloth. Looks like a flag. And what if they burn it in front of you? Well, if they burn it in front of me, I will have the same visceral reaction that anybody at this table would have. But it's not a flag. But it will still get to me because it is a symbol, and that's what they're trying to do.
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Or what if we take a flag and manufacture them for burning purposes? That's not really the flag. Is it the flag? If we make flags for burning and they have 73 stars and 15 stripes and it's the same shape and design and they burn those in public, how many of you would like to own the franchise, the only company that markets and sells those? Bet you wouldn't give a dime for it because there's not a very big market.
And what if someone just takes a picture of the real flag and burns the picture in public, full size, is it unconstitutional to burn a symbol of the symbol? What are we getting us into, Mr. Chairman? There is no threat to our democracy. Let us not try to create schisms in our society. We all love freedom. We all respect the flag. We all must protect our Constitution. Thank you very much.
Mr. CANADY. Thank you, Mr. Ackerman.
Mr. Frost.
STATEMENT OF HON. MARTIN FROST, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. FROST. Mr. Chairman, I am pleased to provide a statement in support of this important resolution to amendment the Constitution to authorize Congress to prohibit flag desecration. I was a co-sponsor of a comparable proposal during the 104th Congress. I also am an original co-sponsor of the resolution before the subcommittee today and I stand in strong support of the measure.
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I'd like to say at the outset that a Federal statute would have been a preferable means of obtaining protections for the flag. However, the Supreme Court, in two narrow 5–4 decisions, in Texas v. Johnson in 1989 and in United States v. Eichman in 1990, departed from longstanding tradition and precedent, permitting the government to protect the flag in this way. The Court has also stated that a constitutional amendment now represents the exclusive means of providing these protections for the flag. Thus, my co-sponsorship and strong support for the measure before the subcommittee today.
H.J. Res. 54 is a bipartisan initiative that is supported by a large cross-section of the citizens of this country. Indeed, recent polling, as has been mentioned previously, has indicated that over 80 percent of Americans favor a constitutional amendment permitting Congress to enact a law to protect the flag of the United States.
Amending the Constitution is a matter of most extreme significance. And it is not something we should do unless it is absolutely necessary. After reviewing the history of our flag and the Government's ability to protect the flag, I have come to the conclusion that we can and should adopt this amendment.
I respect those Members who, though their love of the flag and our country is every bit as vigorous as mine, conclude that an amendment would not be wise. Since I have come to the conclusion that the amendment is appropriate, I wanted to share my thoughts with my colleagues.
Mr. Chairman, throughout our Nation's history, punishing flag desecration has been viewed as compatible with both the letter and spirit of the First Amendment to our Constitution. Such leading proponents of individual rights as former Supreme Court Justice—Chief Justice—Earl Warren, Justice Abe Fortis, and Justice Hugo Black, each have opined that the Nation could, consistent with the First Amendment, prosecute physical violation of the flag.
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As Justice Black, perhaps the leading exponent of First Amendment freedoms to ever sit on the Supreme Court, stated in the 1968 Street v. New York case, quote: ''It passes my belief that anything in the Federal Constitution bars making the deliberate burning of the American flag an offense.'' In the same case, former Chief Justice Warren stated, quote: ''I believe that the States and Federal Government do have the power to protect the flag from acts of desecration and disgrace.''
The views of these important constitutional arbiters are guided by the idea that expressive conduct such as burning the flag differs constitutionally from actual speech. A statute passed under the proposed amendment will not make it unlawful to say anything, no matter how repugnant that statement might be. What will be proscribed, consistent with free speech protections, is certain conduct. The Supreme Court has indicated that it is necessary to amend the Constitution to clarify the Federal Government's right to protect the physical integrity of the flag. Given the role of the American flag as a crucial incident of our Nation's sovereignty and the historical views of the Framers and leading judicial exponents of free speech, such an amendment, while necessary to satisfy the current majority of the Court, does not significantly limit the important protections of free speech contained in the First Amendment.
Again, I appreciate the opportunity to testify here today. It is my hope that Congress will pass this important, bipartisan solution to a vital national concern.
[The prepared statement of Mr. Frost follows:]
PREPARED STATEMENT OF HON. MARTIN FROST, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
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Mr. Chairman, I am pleased to provide a statement in support of this important resolution, to amend the Constitution to authorize Congress to prohibit flag desecration. As you may know, I was a cosponsor of a comparable proposal during the 104th Congress. I also am an original cosponsor of the resolution before the Subcommittee today, and I stand in strong support of the measure.
I would like to state at the outset that a federal statute would have been a preferable means of attaining protections for the flag. However, the Supreme Court, in two narrow 5–4 decisions issued in 1989 in Texas v. Johnson, 491 U.S. 379 (1989) and in United States v. Eichman, 496 U.S. 310 (1990), has departed from long-standing tradition and precedent permitting the Government to protect the flag in this way. The Court also has stated that a constitutional amendment now represents the exclusive means of providing these protections for the flag—thus my cosponsorship and strong for the measure before the Subcommittee today.
H.J. Res. 54 is a bipartisan initiative that is supported by a large cross-section of the citizens of this county. Indeed, recent polling has indicated that over 80 percent of Americans favor a Constitutional Amendment permitting Congress to enact a law to protect the flag of the United States.
Amending the Constitution is a matter of the most extreme significance, and it is not something we should do unless it is absolutely necessary. After reviewing the history of our flag and the Government's ability to protect the flag, I have come to the conclusion that we can, and should, adopt this amendment. I respect those Members who, though their love for our flag and our country is every bit as vigorous as mine, conclude that an amendment would not be wise. Since I have come to the conclusion that the amendment is appropriate, I want to share my thoughts with my colleagues. Now I want to tell you why I support his resolution, which I believe is consistent with First Amendment free speech protection.
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Mr. Chairman, throughout our nation's history, punishing flag desecration has been viewed as compatible with both the letter and spirit of the First Amendment to our Constitution. Such leading proponents of individuals rights as former Supreme Court Chief Justice Earl Warren, Justice Abe Fortas and Justice Hugo Black each have opined that the nation could, consistent with the First Amendment, prosecute physical violation of the Flag. As Justice Black, perhaps the leading exponent of First Amendment freedoms to ever sit on the Supreme Court, stated in the 1968 Street v. New York case, ''It passes my belief that anything in the Federal Constitution bars . . . making the deliberant burning of the American flag an offense.'' In the same case, former Chief Justice Earl Warren stated, ''I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace.''
The views of these important constitutional arbiters are guided by the idea that expressive conduct—such as burning a flag—differs constitutionally from actual speech. A statute passed under the proposed amendment will not make it unlawful to say anything, no matter how repugnant that statement might be. What will be prescribed, consistent with Free Speech protections, is certain conduct.
The Supreme Court has indicated that it is necessary to amend the Constitution to clarify the Federal Government's right to protect the physical integrity of the flag. Given the role of the American flag as a crucial incident of our national sovereignty and the historical views of the Framers and leading judicial exponents of free speech, such an amendment—while necessary to satisfy the current majority of the Court—does not significantly limit the important protections of free speech contained in the First Amendment.
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Again, I appreciate the opportunity to testify here today, and it is my hope that Congress will pass this important, bipartisan solution to a vital national concern.
Mr. CANADY. Thank you, Mr. Frost. I want to thank all of the members of this panel for your testimony. We appreciate your input on this very important issue. Thank you for being with us today.
We'll now move to our second panel and I'd like to ask the members of the second panel to prepare to come forward and take your seats.
Before I introduce the members of our second panel, I'd like to recognize Mr. Hyde.
Mr. HYDE. Well, I thank you, Mr. Chairman, and, unfortunately, I have another committee that's marking up an important bill that I must attend, so I can't stay to hear this excellent panel. I did listen with great interest to the first panel.
I just want to make one statement, if I may. I listened to Mr. Ackerman, the gentleman from New York, keep asking ''What's the threat? What is the threat?'' I don't think you need a threat. I think it's time in our country's history to reassert those ideals which bind us together. And this particular time we are in a centrifugal mode where ethnicity, race, religion, nationality, language—all these things are dividing us, and we're losing that unifying ''Americanism'' that has made us unique in the history of the world.
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The flag is a symbol. It's cloth, but it is a symbol of transcendent ideals. And I just think it's time to reassert those transcendent ideals and to say ''this symbolizes those things which we have in common,'' not the things that we disagree with or the things we differ over, but we have in common—respect for people as individuals, life, liberty, and the pursuit of happiness. And there's nothing wrong with reaffirming and reasserting that. You don't need a ''threat.'' There's nobody threatening us. But we need to reaffirm those ideals. And now is the time.
Senator Moynihan has coined a marvelous phrase: ''defining deviancy down.'' What was deviant a few years ago is no longer deviant. It's accepted conduct. And we're defining it down. Well, now's the time to stop that slippery slope and to reaffirm and reassert the ideals for which so many people have fought and died.
And so, I'm not troubled by the lack of ''threat.'' I just think it's time to stop the pell-mell dash towards separatism and dissonance and discord, and to say ''Hey, we have this in common, America.'' So that's my attitude on this. I'm sure I could learn from listening to this panel. But I'll read everything you've written. Thank you.
Mr. CANADY. Thank you, Mr. Hyde. We will begin our second panel with Maribeth Seely. Ms. Seely is a teacher at Sandyston Walpack School in Layton, New Jersey and is here today with many of her students.
We welcome you all to Washington. If your students are here, would you stand, please? [Applause.]
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Mr. CANADY. We're very pleased to have you with us here today.
Next will be Lawrence Korb. Mr. Korb is the director of the Center for Public Policy Education at the Brookings Institution.
Francis Sweeney comes to us from Pittsburgh, Pennsylvania, where he is the financial secretary of the Steamfitters Local Union 449.
We will then hear from Carol Van Kirk. Ms. Van Kirk has been a strong supporter of efforts to protect the flag and is the national leadership chairperson of the American Legion Auxiliary.
Next, we will hear testimony from Carole Shields. Ms. Shields is the president of People for the American Way.
Our final witness to testify on the second panel will be the attorney general for the State of Idaho, Alan Lance.
I thank each of the witnesses for appearing and I ask that you please summarize your testimony in 5 minutes or less, if at all possible. And without objection, your full statements will be included in the record of the hearing. And, again, we are grateful to each of you for taking time to be with us today.
Ms. Seely. Your microphone needs to be turned on please.
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STATEMENT OF MARIBETH SEELY, TEACHER, SANDYSTONE WALPACK SCHOOL, LAYTON, NEW JERSEY
Ms. SEELY. Thank you very much for inviting me to speak today regarding preservation of the American flag. My name is Maribeth Seely and I'm a fifth grade teacher at the Sandyston Walpack School in a rural section of New Jersey. I'm here today with my 27 fifth grade students.
I'd like to tell you a little bit about my background. My four grandparents came to this country from Ireland and at an early age they instilled in me a pride for their newfound country and for her flag. I think it's very sad today that now we have to discuss protecting that flag, my family's flag, against desecration.
The flag is what America has always stood for. When I teach my U.S. history to my 10- and 11-year old students, they learn about patriotism and at the same time respect for the American flag. I explain to them the reasons why the flag should be respected. I give the flag the faces of all the men and all the women who molded and shaped America.
Now I'd like to share with you what the American flag means to my students. The following are verbatim quotes: Ryan Leppchi, 10 years old: ''Every time I see the American flag, I think of the Civil War. At that time we split up. The war took its toll, but in the end we were reunited under one flag. The flag is a symbol of unity. It shows that if we pull together, we can overcome any obstacle.''
Kelly Ann Kanaley, 11 years old: ''The flag is a symbol of what we were, what we are, and what we will be. It should not be abused in any way. It is a grand old flag.''
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Laura Soehl, 11: ''When I look at the American flag, I see pride. I see our ancestors who died for America. The Stars and Stripes aren't just our States and colonies; they're symbols of life. Each star is a patriot's heart. Each stripe is his soul.''
Serina Perosi, age 11, sums it up by saying: ''Our flag is like a gleaming star in the midst of a dark universe. I believe the flag should never be abused.''
In conclusion, and in my opinion, today, more than ever, students need to connect or unite behind certain truths that don't keep changing. One such truth is respect for America with its glorious and its painful past. Another has to be respect for the flag. Why teach students respect for the flag in the first place if by law they are allowed to desecrate it?
I'm a humble teacher from New Jersey who wants to see a constitutional amendment to protect the flag. Please protect the flag and give back to those of us who are average, everyday Americans the word ''respect.'' Thank you very much.
[The prepared statement of Ms. Seely follows:]
PREPARED STATEMENT OF MARIBETH SEELY, TEACHER, SANDYSTON-WALPACK SCHOOL, LAYTON, NJ
Thank you Chairman Canady, Honorable Committee Members, and special guests for this opportunity to testify before the House Committee on preservation of the American flag. My name is Maribeth Seely and I am a fifth grade teacher from the Sandyston-Walpack School, a rural district in New Jersey. Let me tell you a little about my background. All of my grandparents came to this country from Ireland in the late 1800's, and they instilled in me an early pride of their new found America and her flag. Growing up, the word respect was a very powerful word. it meant many things, but it certainly meant to respect your country and her flag. It is very sad that now we have to discuss protection the flag against desecration. The flag is what America is all about.
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When I teach U.S. history to my 10 and 11 year old students, they learn about patriotism, and at the same time, respect for the American flag. I explain to them the reasons why the flag should be respected. I sort of give the flag a face or rather faces of all the men and women who molded and shaped who we are.
Each year my class does a project dedicated to veterans. We have written letters to veterans to let them know that we remember. One year we donated money to a shelter for homeless vets. Another year, my class invited staff members, parents, and grandparents who had served in the armed forces to participate in a Memorial Day observance. One Grandad, Mr. Michael Koch, brought in the Nazi flag that he and his men had taken off a municipal building in Germany during World War II. We all applauded him and the other ten veterans as our REAL HEROES. Throughout this and all other special events in our school, the flag is saluted by all in attendance. The flag that day reflected the faces of those proud veterans and the faces of the children who looked on in admiration.
As an educator, I have become concerned about the amount of time dedicated to teaching the history of our country. We have a 1997 social studies textbook that has almost 700 pages. Because most classes will probably never get passed the Civil War, how will they ever learn of the real heroes and heroines, and struggles of the 20th century? Or worse yet, if a teacher flies through 700 pages, will the students ever understand or remember the significant events? How will they be equipped with the necessary tools to understand how to prevent more and more wars in the next century?
It seems to me that all American children should learn some basic and unchanging truths. There should be two dozen, or maybe just five or six commonly held truths. Among these, have got to be, in my opinion, respect for our country with its glorious and painful past, and respect for our flag. Do we want our young people to have so little solid ground of factual information about our country and flag that when the question of global citizenship comes up, will they know enough about America? Will they know about our flag? Will it matter?
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Now I'd like to share with you what the American flag means to my students. The following are verbal excerpts:
RYAN LEPPCHI—''Every time I see the American flag, I think of the Civil War. At that time we split up everything in two, the U.S.A. as well as families. The war took its toll, but in the end we were reunited under on flag. The flag is a symbol of unity. It shows that if we pull together, we can overcome any obstacle.''
JENNIFER ERVING—'We all come together every morning to say the Pledge of Allegiance to the flag to show our respect. Here we show people from other places how we respect our country by respecting the American flag.
STEPHEN GREEN—''The American flag means to me a symbol of our country. When you look at the flag, you may hear in your mind, the guns firing, the drums drumming, the men in pain yelling. The American flag has always stood proud whether in a war or at the tip top of a sports stadium.''
ANDREW TIRPACK—noted that the American flag is on police uniforms and scout uniforms as well. He also wants to let people know that: ''never ever let the flag touch the ground, or get it dirty, never ever cut or tear the American flag.''
LAUREN BAMBRICK—''The right way to treat the flag is to bring it in when it rains and at night. There is also a special way to fold it, in the morning you unfold it and put it up.''
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KELLY ANN KANALEY—''The flag is a symbol of what we were, what we are, and what we will be. It should not be abused in any way. It is a grand old flag.''
LAURA SOEHL—''When I look at the American flag, I see pride, I see our ancestors who died for America. The stars and stripes aren't just our states and colonies, they're symbols of life. Each star is a patriot's heart, each star is his soul.''
SERLNA PEROSI—sums it up by saying, ''Our flag is like a gleaming star in the midst of a dark universe. I believe the flag should never be abused.''
In conclusion, and in my opinion, there need to be certain national truths that will not keep changing. One such truth has to be protection for the flag. Why teach student respect for the flag in the first place if by law they're allowed to desecrate it? Please listen to a humble teacher who wants to see a Constitutional Amendment to protect our flag. Do what the majority of American agree to be the right thing and give a gift to our already disillusioned youth. Protect the American flag, and give back to those of us who are average, everyday Americans, the word RESPECT.
Mr. CANADY. Thank you.
Mr. Korb.
STATEMENT OF LAWRENCE J. KORB, DIRECTOR, CENTER FOR PUBLIC POLICY EDUCATION, BROOKINGS INSTITUTION
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Mr. KORB. Mr. Chairman and members of the subcommittee, I certainly appreciate this invitation to appear before you today to testify against the proposal to amend the Constitution to give Congress the power to prohibit the physical desecration of the flag of the United States. As a 23-year Navy and Vietnam veteran, a member of the American Legion, a former official of the Reagan Defense Department, a former professor at the Navy War College and the Coast Guard Academy, and as a secondgeneration American, I revere the flag and that for which it stands.
As much as any citizen, I still get a lump in my throat when I see the flag raised or lowered. Nevertheless, I am unalterably opposed to House Joint Resolution 54. My opposition is based on the following considerations:
First, during my years of military and civilian service during the Cold War, I believed I was working to uphold democracy against the totalitarianism of Soviet communist expansionism. I did not believe then, nor do I believe now, that I was defending just a piece of geography, but a way of life. If this amendment becomes part of our constitution, this way of life will be diminished. America will be less free and more like the former Soviet Union and presentday China.
Second, this proposed amendment is bad public policy. During our 205 years of history, the Bill of Rights has never been restricted by constitutional amendment. If ratified by the Congress and the states, this amendment would be the first in our history to cut back on the First Amendment's guarantee of that freedom of expression that is so necessary to ensure the vigorous debate and dissent necessary to prevent the abuse of power in our democracy. This amendment could set a dangerous precedent for limiting our fundamental freedoms. Would limits on the press be next?
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Third, this amendment is poorly drafted. It is phrased in such broad and vague language that it can and will, if passed, have unintended consequences. These could include censorship of images of the flag in works of art, advertising, and commerce.
Moreover, this amendment would permit indictments and prosecutions not only of protestors, but of individuals who purchased these works of art or who used advertisements that desecrate the flag. This could happen even though these consumers intend no disrespect.
Fourth, the people, the Supreme Court, and previous Congresses do not support this amendment. While we've heard much today about how many Americans support this proposed amendment. This is not true. In a 1995 poll, when Americans were asked if they supported an amendment that would be the first in our history to restrict our First Amendment freedoms, by 52–38 percent they rejected such an amendment.
The highest Court in the land has twice ruled that destruction of the flag for political purposes, although highly offensive to almost all Americans, is undeniably a political statement and a political expression. The Court has held that it is a bedrock principle underlying the First Amendment that the Government may not prohibit the expression of an idea simply because society finds that idea offensive and disagreeable. Finally, twice in this decade, the Congress has rejected this amendment.
Fifth, this amendment is unnecessary to punish most incidences of flag burning or mutilations. Desecrating a flag belonging to the government or a non-consenting individual is punishable under existing statutes. Moreover, flag desecration performed for the purpose of breaching the peace or with knowledge that it will produce an immediate danger is already punishable under the First Amendment.
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Finally, as has already been pointed out, flag burning is exceedingly rare in this country. Since the Supreme Court's 1990 flag decision, there have been less than 35 burning incidents. These few incidents hardly justify the drastic remedy of amending the Constitution.
In conclusion, I think that the motives of the sponsors and supporters of this amendment are beyond reproach. Indeed, I understand why they, and so many Americans, have such a strong reaction to the idea of flag desecration. But for the reasons I mentioned, I believe they are wrong. And I thank God I live in a country that gives me the freedom to say that.
[The prepared statement of Mr. Korb follows:]
PREPARED STATEMENT OF LAWRENCE J. KORB, DIRECTOR, CENTER FOR PUBLIC POLICY EDUCATION, BROOKINGS INSTITUTION
Mr. Chairman and Members of the Committee, I appreciate this invitation to appear before the Congress to testify against the proposal to amend the Constitution to give Congress the power to prohibit the physical desecration of the flag of the United States.
Although I am employed by the Brookings Institution, I am speaking for myself and, to the best of my knowledge, I have not received any federal grant, contract, or subcontract in the past two fiscal years.
As a 23-year navy and Vietnam veteran, as a former official in the Reagan Defense Department, as a former professor at the Navy War College and the Coast Guard Academy, and as a second generation American, I revere the flag and that ''for which it stands.'' As much as any citizen, I still get a lump in my throat when I see the flag raised or lowered. Nonetheless, I am unalterably opposed to H.J. Res. 54. My opposition is based upon the following considerations.
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First, during my years of military and civilian service during the cold war, I believed I was working to uphold democracy against the totalitarianism of Soviet Communist expansionism. I did not believe then, nor do I believe now, that I was defending just a piece of geography, but a way of life. If this amendment becomes a part of our Constitution, this way of life will be diminished. America will be less free and more like the former Soviet Union and present-day China.
Second, this proposed amendment is bad public policy. During our 205 years of history, the Bill of Rights has never been restricted by a constitutional amendment. If ratified by the Congress and the states, this amendment would be the first in our history to cut back on the First Amendment's guarantee of that freedom of expression that is so necessary to ensure the vigorous debate and dissent that is necessary to prevent the abuse of power in our democracy. This amendment could set a dangerous precedent for limiting our other fundamental freedoms. Would limits on freedom of the press be next?
Third, this amendment is poorly drafted. It is phrased in such broad and vague language that it can and will have unintended consequences. These could include censorship of images of the flag in works of art, advertising, or commerce. Moreover, the amendment would permit indictments and prosecutions not only of protectors, but individuals who purchase these works of art, or who use advertisements that desecrate the flag. This could happen even though these consumers intend no disrespect.
Fourth, the people, the Supreme Court, and previous Congresses do not support the basis for this amendment. In a l995 poll, by 52 percent to 38 percent, Americans reject such an amendment when they discover that it would be the first amendment in our history to restrict our First Amendment freedoms. The highest court in the land has twice ruled that destruction of the flag for political purposes, although highly offensive to almost all Americans, is undeniably a political statement and a political expression. The Court has held that it is a bedrock principle underlying the First Amendment, that the government may not prohibit the expression of an idea simply because, society finds the idea offensive and disagreeable. Finally, twice in this decade the Congress has rejected this amendment.
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Fifth, the amendment is unnecessary to punish most incidences of flag burning or mutilations. Desecrating a flag belonging to the government or a non-consenting individual is punishable under existing statutes. Moreover, flag desecration performed for the purpose of breaching the peace or with knowledge that it will produce an immediate danger is already punishable under the First Amendment.
Finally, flag burning is exceedingly rare in this country. Since the Supreme Court's 1990 flag decision, there have been less than 35 burning incidents.
In conclusion, I think that the motives of the sponsors and supporters of this amendment are beyond reproach. Indeed I understand why they and so many Americans have such a strong reaction to the idea of flag desecration. But, for the reasons I mentioned above, I believe they are wrong.
Mr. CANADY. Thank you, Mr. Korb.
Mr. Sweeney.
STATEMENT OF FRANCIS J. SWEENEY, FINANCIAL SECRETARY, STEAMFITTERS LOCAL UNION 449, PITTSBURGH, PA
Mr. SWEENEY. Thank you, Mr. Chairman, members of the committee, for giving me the opportunity to express my opinion in reference to H.J.R. 54. My name is Francis J. Sweeney. I am the Secretary Treasurer of Steamfitters' Local Union 449, which has a membership of greater than 1,500 men and women who the majority of these members feel the same as I do in reference to this issue.
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The American flag has always been a symbol to me, a symbol of the United States of America. When I was in grade school, later in high school, and then when I became a union member, we always through the years pledged allegiance to the flag. It was always very touching to me.
My uncle, William Sweeney, was also a steamfitter. He was decorated with a silver star and a bronze star during World War II. He was a great influence on me during these years. To him, the flag was perhaps the strongest symbol of being greatness in the United States of America. His feelings for the flag strengthen my feelings to this day.
I know how people get—I get upset when I read in the newspapers and hear in the other media about demonstrators and others desecrating the flag—because there are many different ways that you can express your opinion besides desecrating the flag. Throughout its history, the American labor movement has never shied away from making its feelings known concerning various issues and policies, but never once in the 40 years that I've been a union member have I ever heard of any union woman or man considering desecrating the flag to prove their point. I know that people get frustrated, but they must understand that the flag is a symbol of the United States of America. And when you insult the flag, you insult our country.
For much of the Nation's history, respect for the flag was never an issue. But times have changed. We can no longer rely on individual values shared by all Americans. I can see no other way except to pass this resolution to ensure the future protection of the American flag. Thank you, Mr. Chairman and members of the subcommittee.
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[The prepared statement of Mr. Sweeney follows:]
PREPARED STATEMENT OF FRANCIS J. SWEENEY, FINANCIAL SECRETARY, STEAMFITTERS LOCAL UNION 449, PITTSBURGH, PA
Thank you, Mr. Chairman and members of the Subcommittee, for the opportunity to express my support for H.J. Res. 54, a constitutional amendment to permit Congress to prohibit desecration of the American flag. My name is Francis J. Sweeney, and I am appearing before the Subcommittee today as the Secretary and Treasurer of the Steamfitters Local Union 449, the membership of which includes more than 1,500 men and women in Pittsburgh and neighboring western Pennsylvania. I believe I speak in support of this important flag protection measure for most of the over one million hardworking men and women in the American Labor Movement who hold the flag sacred.
The American flag is a national symbol of great meaning and importance to me. It is a symbol of the United States of America, and it represents all of the freedoms and opportunities that make us fortunate to be Americans. To me, the flag also represents devotion to country and sacrifice. My Uncle—a highly decorated World War II veteran, who won both the Silver Star and the Bronze Star—was perhaps one of the greatest influences in my life. He regarded the flag as the strongest symbol of liberty, family and country. Whenever I have stood to pledge allegiance to the flag, whether back in grade school or now as a union member, I am reminded of my Uncle's great bravery and sacrifices for the flag.
It is these feelings of pride for my country and for those who have sacrificed for the flag that are most deeply offended when I read the newspaper or hear about individuals who have desecrated the flag in attempts to express an opinion or prove a point. There are so many ways other than attacking the flag to express an opinion. The American Labor Movement has never shied away from expressing views on issues and policies. Yet never, in my over 40 years of union membership, do I recall union men or women desecrating a flag to make a point. I recognize that people get frustrated, and I respect their freedom to protest. But an attack on the American flag is an insult to the nation and to all that being an American stands for.
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For much of our nation's history, respect for the flag was a standard. But times have changed, and certain individuals have lost sight of the true meaning of our national symbol. I hope that Americans can once again unite in allegiance to the flag, and I believe, as so many hard-working Americans in the labor movement do, that the resolution before the Subcommittee today is the only means remaining to ensure the protection of the American flag as our most vital national symbol.
Mr. CANADY. Thank you, Mr. Sweeney.
Ms. Van Kirk.
STATEMENT OF CAROL VAN KIRK, NEBRASKA AMERICAN LEGION AUXILIARY
Ms. VAN KIRK. Thank you, Mr. Chairman, for the opportunity to present my testimony. I am here today, first, as a mother of four children, and proud grandmother of fourteen. I want them to respect our country. Flag desecration teaches them disrespect. It sends a wrong message at a time when we are striving to restore the values that America seems to have lost. How can I explain to my grandchildren that they should pledge their allegiance to our flag and yet tell them that it is okay to desecrate that very symbol of our freedom?
This movement to protect our flag from physical desecration is about values, responsibility, and respect. More important, it is about the democratic process and about ''we, the people'' having a say in how we want to be governed. Our Founding Fathers created a form of government that placed ultimate power in the hearts, hands, and minds of everyday people like me. Passing this amendment will prove that the democratic process they envisioned still works.
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I listened to President Clinton tell us on November 10 that the American people have shown that they want to preserve their values. He said ''we must respond.'' Well, 80 percent of them are now calling on Congress to pass a constitutional amendment preserving one of our most basic values—the physical integrity of our United States flag.
Our flag stands for our land, for our people, and for our unity. Destroying our flag goes far beyond the limits of free speech. It destroys something that belongs to all Americans. And that is wrong.
We hear a lot of talk about voter apathy today. I believe we would see ''we, the people'' return to the voting booth if they actually believed that the individuals they elected would truly vote their voices and vote ''yes'' to protect our flag. That is what I want; that is what the American people want. And I hope that is what you will do. Thank you.
[The prepared statement of Ms. Van Kirk follows:]
PREPARED STATEMENT OF CAROL VAN KIRK, NEBRASKA AMERICAN LEGION AUXILIARY
Thank you, Mr. Chairman, for the opportunity to give you my comments today.
I am here today, first as the mother of four children and proud grandmother of fourteen. I want them to respect our country. Flag desecration teaches them disrespect. It sends the wrong message at a time when we are all striving to restore the values America seems to have lost.
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How can I explain to my children and grandchildren that they must not shoot a bald eagle, or even a pheasant out of season, because those acts are illegal—yet we cannot say the same thing about desecrating the very symbol of our freedom!
I am also here today as a member of the Citizens Flag Alliance (CFA) which represents over 20 million Americans and 119 diverse, community-based organizations, such as the Elks, The American Legion and the Grange just to mention a few. Our common goal is to have Congress pass a proposed constitutional amendment to protect ''Old Glory.'' Unlike other proposed constitutional amendments recently debated in Congress, H.J. Res. 54 was truly initiated through a national grassroots effort. For this reason, I hope you pass this measure and let the people decide.
The movement to protect the American flag from physical desecration is about responsibility and respect. More importantly, it is about the democratic process and about ''We the people'' having a say in how we want to be governed. America's Founding Fathers created a form of government that placed the ultimate power of this nation in the hearts, hands and minds of common, everyday people. Passing this amendment will be a true exercise of the democratic process.
I listened to President Clinton being interviewed on television November 10th. He said the American people have shown through their vote that they want to preserve their values; he said we must respond. Well, 80 percent of the American people are calling upon Congress to establish a framework for a constitutional amendment to preserve one of our basic values—protecting the American flag from desecration.
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Our flag stands for our land, our people, our unity. Destroying our flag goes beyond the limits of free speech and expression because to do so destroys something larger and more important than the whims of any one of us. It is destroying something that belongs to all Americans. This is wrong.
Our forefathers were wise enough to realize there may be a time when we would need to amend the Constitution. Thus, a provision for doing so was included. They made the process difficult—as it should be. Only if ''We the people'' felt the issue was important enough would the necessary votes be cast. I always believed that Congress was the voice of ''We, the people.''
We talk a lot these days about the apathy of the American public at the voting booths. I believe you would see ''the people'' return to the polls if they felt the individuals they elect would truly be their voices.
In closing, let me reaffirm: I do not want my grandchildren to think that it is all right to walk on our flag . . . defecate on it . . . flush it down the toilet. I want them to observe the flag blowing freely in my front yard and to remind me when the edges start to become frayed and it needs replacing. I want them to know how to properly fold and display her. I want them to look at her and have their hearts swell with pride as they remember the history that has gone before them to ensure their freedom.
This is what I want. This is what the American people want. It is up to you.
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Thank you.
Mr. CANADY. Thank you.
Ms. Shields.
STATEMENT OF CAROLE SHIELDS, PRESIDENT, PEOPLE FOR THE AMERICAN WAY
Ms. SHIELDS. Thank you. Thank you very much for having me. I'm Carole Shields and president of People For the American Way. We have about 300,000 members nationwide who come together around tolerance, compassion, respect, and diversity—a wide range of things that enter into this discussion.
You have my testimony and I won't go through it all, but I do want to reflect on a few things that have been said this morning. I'm a Baptist preacher's kid and I come to this from a theological point of view about freedom of conscience. And I think that's where my unwillingness to sacrifice substance for symbolism when our liberty is at stake comes in.
I want to remind us who—someone has already quoted today Justice Jackson from about 50 years ago. There's one more quote I think is worth hearing. He said: ''Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.''
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Unlike totalitarian states, we don't have to coerce patriotism. We teach it as this wonderful teacher has taught her children. It's a greater love of country that we enjoy and one that's born of free will and of devotion.
The eloquence of the children that were quoted earlier can't really be improved upon. The flag is so precious precisely because of what it symbolizes. But I think the important thing to remember while we're here today is that this discussion is not about the symbols; it's about the real thing. It's about the freedoms, not just the symbol of them. The freedoms are why we go to war.
I attended the inauguration this year. And when I went home and I talked to my grandchildren, one story that I told them was about seeing several recipients of the Congressional Medal of Honor who attended the inauguration that day, and how I could see them in the crowd, and how impressed I was to see them and watch them, and I went and introduced myself to one of them. I'm somewhat stunned to be sitting here before so very many of you.
I have one friend—I only know one person of this stature—and I know that his opinion is different than some other Congressional Medal of Honor winners. The fact that this group, whose sacrifice and whose performance in the duty of their country and on all of our behalf, that they would disagree about that issue I think makes the point exactly: that the freedom to express our differing views is a freedom that is an essential one. It's why they went to war and fought for us and why this freedom should not be abridged in any way.
I'm a grandmother, too. I have five and I agree that it's important to teach these children not to desecrate the symbol. I also want to teach them about defending the right of the people to disagree. The Bill of Rights is not a work-in-progress. Let us not make any of these children less free tomorrow than they are today. We honor our flag and our constitutional democracy by defending to the death our fundamental freedoms. Thank you.
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[The prepared statement of Ms. Shields follows:]
PREPARED STATEMENT OF CAROLE SHIELDS, PRESIDENT, PEOPLE FOR THE AMERICAN WAY
Good morning Mr. Chairman and members of the subcommittee, and thank you for inviting me to testify today. My name is Carole Shields and I am President of People For the American Way, a 300,000 member non-partisan citizens organization committed to promoting and defending our nation's most cherished values and freedoms as embodied in the First Amendment of our Bill of Rights.(see footnote 1) In an effort to solve a problem that does not exist, the proposed flag desecration amendment would actually tarnish and diminish the flag by undermining the very freedoms and values for which it and our constitutional republic so proudly stand. This is not the American Way.
In 1980, a group of civic and religious leaders founded People For the American Way in order to combat intolerance and to affirm our common heritage and fundamental American values of ''pluralism, individuality, freedom of thought, expression and religion, a sense of community, and tolerance and compassion for others.'' Since then, People For the American Way has worked hard to promote and protect these values and individual freedoms whether it be in the area of religion, the arts, the public schools, the public libraries, or politics.
My own passion for these values come directly from my religious upbringing in the South. My father, my grandfather, and two of my uncles were Southern Baptist preachers with a straightforward and powerful core theological belief in the individual's freedom of conscience. It is this deep and abiding religious and moral conviction in individual freedom that I bring to this issue, and that forms the bedrock for my unwillingness to sacrifice substance for symbolism where fundamental liberty is at stake. These are the values that brought me to People For the American Way. From its beginning, this organization has stood firmly against cynical attempts to use the American flag as a political wedge issue, which would undermine the very liberties that make the United States the beacon of freedom for the rest of the world.
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Though some today seem not to be aware of it, the Bill of Rights is not a first draft. For over two centuries, Congress has never, ever passed a constitutional amendment to restrict the Bill of Rights. That's a tribute to the wisdom of Congress—and the good sense of the American people who understand how fortunate we are to live in a nation whose Bill of Rights protects our most basic freedoms. That is why, according to a 1995 Peter Hart poll commissioned by the American Bar Association, a majority of Americans opposed a flag desecration amendment by 52% to 38% when they were informed that it would be the first in the nation's history to restrict First Amendment freedoms.
We can all well appreciate the strong feelings engendered by this issue. Destroying or disrespecting the American flag as part of a political protest is highly offensive. However, at the same time, it is undeniably a political statement and thus cuts to the core of the First Amendment. As the Supreme Court has properly held time and time again, it is a ''bedrock principle underlying the First Amendment . . . that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive and disagreeable. Moreover, as Justice Robert Jackson eloquently stated over 50 years ago, ''Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.''
America is a strong enough country to tolerate political demonstrations—even extreme and offensive ones—and tell the demonstrators: ''We disagree with every word you say, but we will defend unto death your right to say it.'' Indeed, to ban so-called flag desecration would put America in the unwelcome league of totalitarian states such as China and the former Soviet Union which fear dissent and oppose our freedoms of expression and peaceful assembly and protest. We ought not to allow a handful of offensive protesters to achieve what the fascists we fought in World War II and the communists we resisted during the Cold War could not—to make us surrender our most fundamental freedoms. We are a stronger nation and a stronger people than that.
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What is the urgent crisis then that impels the need to voluntarily surrender the freedoms in our Bill of Rights for the first time in our nation's history? Flag burning as part of a political protest, as opposed to the proper disposing of a worn flag, is an exceedingly rare occurrence in our country. Published reports indicate only a handful of such occurrences since the Supreme Court's flag decisions of 1989 and 1990. If anything, the historical evidence suggests that outlawing so-called ''flag desecration'' will only increase flag burnings and acts of disrespect for the flag by those who seek attention. Nor is there any evidence that the few flag burnings that have occurred have in any way diminished the patriotic feelings of Americans for the flag and their country. To the contrary, as Professor Robert Justin Goldstein points out in his excellent history of the American flag desecration controversy, public outrage at Gregory Lee Johnson's burning of the flag in Dallas in the early 1980's only increased the public's reverence for the flag and patriotic feeling. Unlike totalitarian states, Americans need not coerce patriotism. It is a much greater love of country that we enjoy, one that is born of free will and devotion.
Unfortunately, there are some who feel that they can garner political gains by using the flag as a wedge issue to question the patriotism of those who oppose the amendment. This divisive and cynical strategy disserves America and is itself an abuse of the flag. Indeed ironically, as Professor Goldstein points out in his book, at the turn of the century, outrage at the use of the flag as part of partisan, political campaign ads was one of the driving forces behind the movement for flag protection legislation. Furthermore, the evidence suggests that this issue may not even achieve the hoped for political gains. Public reports and analysis of the 1996 elections show that the six incumbent Senators targeted by supporters of the amendment were all reelected and that the flag issue either was a non-issue or backfired in these campaigns. As the recent elections demonstrate, the American public wants Congress to focus on the real issues affecting their daily lives and well being.
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In conclusion, we honor the flag best by defending the fundamental constitutional freedoms and values for which it stands. This is truly the American Way.
Carole Shields is President of People For the American Way, a Washington-based organization comprised of 300,000 members nationwide who support the values of the American Way—freedom of conscience and expression, civic participation, equality, justice, tolerance and diversity.
Prior to coming to her current position in 1996, Ms. Shields was a board member of PFAW for six years. During that period, she was also vice chair of the Public Health Trust of Dade County, Florida, which administers the nation s busiest hospital. She also served on the board of the State of Florida s Health and Rehabilitative Services, and the Dade Children s Partnership.
Ms. Shields' professional history includes service at several philanthropic foundations, including the Kettering Foundation, the Lilly Endowment and the Davis Foundation, working on issues of civic participation, theological education, health care and minority education.
She currently serves on the Dade Community Foundation board, and the Forum for Medical Ethics and Philosophy at the University of Miami. She has served for three years as panelist for the White House Fellows competition.
Ms. Shields has an MBA from the University of Miami, and has been an active participant in health policy and religious liberty debates on the national, state and local levels. She has testified before committees of Congress and the Florida House, and served as speaker for many professional associations. While Vice President of Hospice Care, Inc., she developed the nation s largest hospice program for persons living with AIDS.
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Ms. Shields and her husband, Hugh Westbrook, are active fundraisers for a variety of organizations, including People For the American Way, Make A Wish Foundation, Habitat for Humanity, the University of Miami, Miami-Dade Community College, and numerous causes related to AIDS, domestic violence, citizen action, and minority access to higher education. Ms. Shields and Mr. Westbrook live in Miami and Washington, and have five children and six grandchildren.
Mr. CANADY. Thank you, Ms. Shields.
Mr. Lance.
STATEMENT OF ALAN G. LANCE, ATTORNEY GENERAL, STATE OF IDAHO
Mr. LANCE. Thank you, Mr. Chairman, distinguished members of the committee. I have previously submitted my written remarks and assume that they will be inserted in the record and I will only highlight some of my observations for you.
I've listened to some of the brightest legal minds in this country debate this issue. I've heard all of the aspects discussed in great detail here in Congress, in State legislatures, in the media, and in my own community. One consistent theme I continue to hear repeatedly is nobody advocates the physical desecration of the flag of the United States. As responsible judges, legislators, civil liberties advocates, editors, or citizens, nobody has declared that physical desecration of the American flag is conduct that they advocate. I can cite time and again where opponents of the flag amendment make it clear that they deplore the acts of physical desecration of the American flag.
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The problem, as I see it, has to do with the ultimate responsibility to decide the limits to be placed upon freedom of speech, or in this case, limits upon offensive conduct. My reading of the United States Constitution places that responsibility on ''we, the people.'' The United States Supreme Court has made its collective decision based upon interpretation of five honorable Justices. This does not mean that the interpretations of the four dissenting honorable Justices had no merit. This was simply a case of the majority rules, and a very slim majority at that. One Justice's view determined whether or not we would be here today debating this very issue.
So who's right? Who's correct? Is the physical desecration of the American flag protected as freedom of speech, action, or conduct? Or is wanton misconduct? Well, they're both right, based upon their individual interpretation of the single document that governs this Nation.
You see, the document never officially changed, just the individual Justices. And since its adoption on December 15, 1791 until June of 1989, never had the Supreme Court of this country ever ruled that the States nor the Congress would not have the ability to protect the flag of this Nation.
I heard this morning from one of your distinguished colleagues that the Founding Fathers would be shocked to know that we would be considering such an amendment. Well, in the day of our Founding Fathers, desecration of the American flag resulted in treason and, generally, hanging. And so, it was not a freedom of speech issue with our Founding Fathers.
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And, again, please keep in mind this is conduct. One of your distinguished colleagues also mentioned the fact that, certainly the principle was that ''I may disagree with what you say and I will defend to the death your right to say it,'' but I'm not so sure that we will defend to the death your right to desecrate our flag. And that's the issue as I see it.
Mr. Chairman and members of the committee, I was a member of the legislature in the State of Idaho. I authored, carried, and passed the joint memorial resolution calling upon you, Congress, to give us, ''we, the people,'' the opportunity to vote and discuss and debate this issue. The vote in the State of Idaho was, out of 105, 100 affirmative votes for that proposition.
The crisis that I hear alluded to here, ''What's the crisis?'', ''What's the crisis?''—the crisis is that 49 of your partners at the State level in this federalist Republic that we have, have asked you to give us, the people, the opportunity to debate this issue at the State level. That's the crisis. And it seems to me that being called upon by 49 out of the 50 jurisdictions in this country to give us the opportunity to debate this, to give us the opportunity to discuss this, and to vote upon it, is really the issue.
We're having a breakdown of the Federal system. The flag issue certainly is important, but the fact of the matter is the crisis comes from the fact that 49 States are being ignored in terms of what they've asked you to do in returning to the people the opportunity to vote on this.
It has been mentioned here on several occasions this morning that this would be the first time that the Bill of Rights has ever been amended. Ladies and gentlemen, members of the committee, and Mr. Chairman, I would suggest a close reading of the Seventh, Ninth and Tenth amendments to the Constitution of the United States which are also considered to be part of the Bill of Rights, and then a subsequent reading of Articles 14, 15, 16, 19, 24, and 26 of the United States Constitution, which strongly suggests that this is not the first time that the Bill of Rights would have been amended by constitutional amendment.
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And ultimately the question is ''What is a flag?'' Who would be prosecuted? Who would not be prosecuted? And the answer is, I trust the prosecutors; I trust the juries around the United States to make those decisions. Even though there seems to be some indication that the people do not have the ability to sort these things out, I would suggest to you that the truth is far different than that.
And in conclusion, let me say that behind me and to my right are gentlemen who are heroes of this Nation who sacrificed and put themselves at great personal peril to defend the principles of this country in time of armed conflict. And what they provided us is a heritage. And behind them directly are young students from Sussex County, New Jersey, who are going to be the beneficiaries of that heritage. And please do not tell them that we, the people, after 49 State legislatures have requested that you give us the opportunity, really have no voice in this great Nation and this great democracy. Thank you, Mr. Chairman.
[The prepared statement of Mr. Lance follows:]
PREPARED STATEMENT OF ALAN G. LANCE, ATTORNEY GENERAL, STATE OF IDAHO
Chairman Canady and Members of this distinguished Subcommittee, I want to thank you for allowing the voice of the American people to be heard on this very serious and emotional issue. As an elected state official, an attorney, a veteran, a husband, a parent and a citizen, it is my honor to present testimony in support of House Joint Resolution 54.
Opponents of H.J. Res. 54 have tried to trivialize the physical desecration of the Flag of the United States and the efforts of those American people seeking passage of a constitutional amendment to provide flag protection. Any time the United States Supreme Court rules with such a narrow margin, as the 5–4 decision in TEXAS v. JOHNSON, 491 U.S. 397 (1989), the issue merits close scrutiny by everyone; jurists, lawmakers and, more importantly, ordinary citizens.
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I have listened to some of the brightest legal minds in this country debate this issue. I have heard all of its aspects discussed in great detail here in Congress, in state legislatures, in the media and in my own community. One consistent theme I continue to hear repeatedly is nobody advocates the physical desecration of the Flag of the United States. As responsible judges, legislators, civil liberties advocates, editors or citizens, nobody has declared that physical desecration of the American flag is conduct they advocate. I can cite time and again where opponents of the flag amendment make it clear that they deplore acts of physical desecration of the American flag.
The problem, as I see it, is who has the ultimate responsibility to decide the limits to be placed on freedom of speech. My reading of the United States Constitution places that responsibility squarely on We the people. The United States Supreme Court has made its collective decision based on the interpretation of five honorable justices. This does not mean that the interpretations of the four dissenting, honorable justices had no merit. This was a simple case of ''majority rules;'' a simple majority at that. One justice's view determined whether or not we would be here today debating this issue.
So who is right? Is the physical desecration of an American flag protected freedom of speech or wanton misconduct? They both are right, based on their individual interpretation of the single document that governs this nation. You see, the document never officially changed, just the individual interpretations of that great document changed. There have been three new Justices added to the Court since the 1990 ruling in UNITED STATES v. EICHMAN, 496 U.S. 310 (1990), another 5–4 flag desecration decision. Who knows what the ruling would be if addressed again? But that's the problem; without a constitutional amendment to help clarify the will of We the people, interpretations could continue to be inconsistent.
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Mr. Chairman and Members of the Subcommittee, nowhere in the U.S. Constitution is the flag of the United States of America specifically mentioned. The American flag does not fall into a specific judicial category. The flag is a product of the Congress and the American people. The American people got Congress to officially recognize ''Old Glory'' as its national symbol. The Flag Code, Chapter 10 of Title 36 of the United States Code, is a product of the American people that Congress enacted into Federal law. I hope by now the point I am trying to make is crystal clear: The flag of the United States of America is the product of We the people.
On June 21, 1989 the United States Supreme Court shocked the nation with its ruling in TEXAS v. JOHNSON. For over 200 years the physical desecration of the flag was viewed as inappropriate conduct at times bordering on treason! The definition of treason that I am familiar with is the offense of attempting by overt acts to overthrow the government to which the offender owes allegiance. The physical desecration of a nation's flag was a rite routinely performed by a conquering enemy. Allies don't physically desecrate the national banner of its alliance members; in fact, extreme protocol is exercised with respect to proper display of those national banners.
The American flag, universally, represents a nation of people. It marks national achievement as it stands boldly on the surface of the moon and raised to honor international athletic successes. It marks national grief as it flies at half staff or drapes a casket. It marks national pride as it tops federal buildings; stands in classrooms, court rooms, places of worship, and meeting halls; and flies at cemeteries, parks and memorials.
Most opponents of the flag amendment cite protection of the First Amendment as the principle-reason for their opposition. First, I want to say nowhere does the U.S. Constitution grant absolute freedom of speech. The current limits placed on freedom of speech are not clearly defined in the U.S. Constitution, but rather in the federal statutes that are upheld by the interpretations of the U.S. Supreme Court. Flag desecration fell in this elite category until June 21, 1989. Forty-eight States and the District of Columbia had enforceable flag desecration laws until TEXAS v. JOHNSON. On several occasions the previous U.S. Supreme Court Justices upheld challenges to these state laws. So what changed? The interpretation of five of nine Justices; not the views of the American people or the language of the Constitution. When Congress tried to correct the Justices' ruling by passing the Flag Protection Act of 1989, their efforts were also interpreted as unconstitutional.
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The Federal Communications Commission also has the power to enforce recognized restrictions on free speech. The FCC has the power to levy fines based on a subjective degree of severity of the violation. The Department of Defense places restrictions on free speech of military service members, who willingly place their lives in danger to protect the U.S. Constitution. Clearly, restrictions on freedom of speech are not uncommon concepts in America.
Secondly, the First Amendment does not need protection because it is the product of We the people not Congress. Nothing is added to the Constitution without the final approval of We the people. Congress can pass every constitutional amendment introduced, but none become a part of the Constitution until ratified by three fourths of the States. Congress is not the keeper of the Constitution; We the people are its editor.
Finally, the Founding Fathers took a hard look at the Articles of Confederation and realized its limitations. One of the most glaring differences between the Articles of Confederation and the Constitution is the amendment process. The Constitution, by design, is a living document. Look at the changes. All of the amendments were improvements that were deemed necessary because of changes in the attitudes of We the people. For an example, the U. S. Supreme Court repeatedly upheld the legality of slavery, until December 6, 1865 when the Thirteenth Amendment was ratified and clarified this serious misinterpretation of a majority of honorable Justices.
Even when We the people were wrong, appropriate actions were taken to correct the mistake. Twenty-seven amendments serve as clear examples of who is ultimately in charge; We the people or the government. I have faith in the American people to make the right decision. Former Illinois Senator Paul Simon, an outspoken opponent of the flag amendment, predicts the flag amendment would be the fastest ratified amendment in American history. Personally, I agree with that prediction, because I believe the vast majority of Americans feel as I do about the flag of the United States and see physical desecration as inappropriate behavior.
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Another objection of those who oppose this amendment is based on the extremely limited number of actual American flags being physically desecrated. Frequency of occurrence is a criteria for determining the severity of punishment not the criteria for legality. If no cases of slander are prosecuted, would that justify making it legal? Of course not. Legality is based on the appropriateness or inappropriateness of the act.
Another objection of those who oppose this amendment is based on ownership of the American flag being physically desecrated. Again this goes back to the issue of right or wrong. Ownership does not exempt people from compliance to restrictions of freedom of speech. If you own a radio station, you still fall under FCC restrictions. If you own your house and elect to stand on your front porch at midnight and shout at the top of your lungs your political beliefs, you will find yourself in jail for breaking the law. Ownership carries with it responsibilities to comply with laws associated with proper exercise of that privilege.
Finally, I have heard opponents of this amendment say that the American flag is just another piece of cloth. If it were just another piece of cloth, this hearing would not have been scheduled or necessary. Nobody would have cared one way or another. Physical desecration of just a piece of cloth is an oxymoron. The House of Representatives would not start it's business day with a Pledge of Allegiance to just a piece of cloth. Embassies would not fly just a piece of cloth in a foreign land. A grateful nation would not present just a piece of cloth to the survivors of a deceased veteran in memory of honorable service. This is the weakest argument of all. Congress has officially recognized the flag of the United States of America. Old Glory is probably the most recognized national banner on the planet, by both friends and foes.
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In my opinion, the proposed constitutional amendment to give Congress power to prohibit the physical desecration of the Flag of the United States is necessary for one specific reason: the American people would have the final decision on this issue, not Congress, not the President nor the Supreme Court. They represent the branches of the government; We the people are the government. The U.S. Supreme Court has left the American people with only one option if they sincerely want to have laws to prohibit physical desecration of the American flag. This flag amendment would place the American flag in the Constitution making it clear that Congress can establish federal statutes, like the Flag Protection Act of 1989, that are enforceable.
Ratification of this proposed constitutional amendment is not guaranteed. Six other amendments have been submitted to the States but have not been ratified. Just because Congress thinks a change is a good idea, does not mean the American people will blindly agree. A seventh one (the 27th Amendment) languished from 1789 until 19921 But no change was ever made without the consent and cooperation of Congress and We the people.
If this flag amendment passes Congress, will it be ratified? I don't know. But I am relatively confident it will be ratified by the Idaho legislature at the first available opportunity. The grassroots of America seem to believe this is one exception to freedom of speech that seems reasonable. I'm not going to recite results of national polls and surveys conducted across the United States over the last 7 years because I think you know how your constituents feel about this issue. I think your constituents know the difference between freedom of speech and vandalism or misconduct. I think your constituents know the difference between properly disposing of an American flag and the violent destruction of the nation's banner. Certainly they know that stealing an American flag and defecating on it, as a Wisconsin teenager did, is nothing short of vandalism.
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To my knowledge, there is absolutely no other proposed constitutional amendment that has as much grassroots and Congressional support as does H.J. Res. 54. This is a values issue with the vast majority of Americans. It is only human nature for ordinary people to try to protect those things that they deeply cherish. Physical desecration of an American flag is nothing more than a violent assault on the shared symbol that binds this nation together.
The State of Idaho passed a memorial resolution calling on Congress to send to them a proposed constitutional amend to protect the American flag. As a state legislator at that time, I proudly worked for passage of the resolution. Idaho was one of the forty-nine states that passed a memorial resolution. Representative Bernie Sanders is the only House Member whose state did not pass that memorial resolution. Ironically, the Vermont state legislature has passed it in each chamber, but not in the same session. Look at the list of co-sponsors on House Joint Resolution 54. What a mixture of supporters: incumbents and freshmen; men and women; young and old; military veterans and non-veterans; numerous religious faiths; liberals, conservatives and blue dogs; and representatives of rural and urban districts. Just like America itself.
During the Persian Gulf War, I saw the American flag flying from antennae of tanks and Humvees. I must admit as a veteran, my heart swelled with pride because I knew the hardships those brave men and women were enduring daily. I also remember seeing Iraqis and Americans physically desecrating American flags. Regardless of who physically desecrates an American flag or how many are destroyed, it is wrong.
Mr. Chairman and Members of this Subcommittee, I see your job today is quite clear and unmistakable. Your charter is to comply with the request of your constituents and send them a proposed constitutional amendment that will let We the people decide the fate of this issue. Amending the Constitution is a vital part of the democratic process. It demonstrates who is ultimately in charge of this country: Congress, the President, the Supreme Court or We the people. That is the essence of democracy in action.
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Mr. CANADY. Thank you.
Mr. Bryant.
Mr. BRYANT. Thank you. Let me join the remarks of the attorney general. I don't know if I could have said that any better. It seems to me we've got a very distinguished panel. We certainly have all sides of this issue represented and we've been through this before. We have an audience full of people who, as General Lance mentioned, distinguished themselves in service of this country, and as the proverbial thing says, they fought for the flag. We have young people here who are probably enjoying their day away from school today and I know that—and probably don't totally grasp what's going on, but it's certainly an experience that is truly educational. And it's such a contrast.
But, you know, when it comes down to it, I hear things like ''communist governments,'' and all these governments that take away rights, and arguments like ''this will end the Bill of Rights as we know it,'' that the country will collapse if we pass this amendment.
I learned very quickly in Washington we sometimes get into the extremes in talking about issues and that seems to be a good argument: that the world as we know it will end if this passes. And I just have a sneaking suspicion it's not—what really prompts me this way is, as General Lance said, you know, this is something that we're giving the people of this country the opportunity. I know we've got People for the American Way represented here. And I think they have, as their president testified, 300,000 people. There are millions of people in this country, though, that would like the opportunity to have a constitutional amendment which would protect or allow the States to protect against the desecration of the flag. My question is, Why not? Why not give them the opportunity? You know, it takes a two-thirds vote of both the House and the Senate to get this out. And then it has to be ratified by three-quarters, three-fourths of the States out there. And if it's a terrible idea, if it will end democracy and free speech as we know it, then it won't pass. But if it's—if this country has a right to change the Constitution, to select a symbol that you don't tread on, that you don't desecrate, then the people will say so.
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You know, right now, Mr. Korb, I really appreciate your service to this country, and for you to come out and take this position is one that I have to put a lot of weight on, because you've been there and done what these folks have done, and you've got a different view. And I respect that view.
But you know, right now, the American eagle that's on the back of this wall, if we went out an killed an American eagle, we'd be punished criminally. We could be fined, maybe even go to jail. I mean, I don't have the Bill of Rights to guarantee that I can go out and kill a symbol of this country and not be criminally prosecuted. And, to me, the flag is at least as important as that and I think it's even more important.
You know, I can't go out, as a part of my free speech, and go up to the White House and go into the White House and say things and protest. I mean, I'm going onto property I'm not supposed to be on. There are all kinds of limitations that we have drawn up that I'm sure have been mentioned before I came in today—slander, libel, yelling ''fire'' in a crowded theater, and those kinds of things, where we have set limitations on free speech—not because of that, but for other reasons.
I think the Bill of Rights is an exceptional part of a total document, but I do believe that in this instance the people have risen up in large numbers, and certainly we are elected to be representatives of the people. We certainly want to take the various viewpoints into consideration, but regardless of what numbers you use, the vast, vast majority of the American people who sent us to Washington want us to pass this bill. Give them the opportunity in the States, at the State legislative level, to consider this, and if they think it's a good idea, then it will pass. If it's a bad idea, it will fail.
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In the end, I do not think the world as we know it, this country as we know it, will die or end if it should pass. But thank you for your taking your time and coming in here—with a great amount of courage; I think you're outnumbered here in speaking your viewpoint. Thank you.
Mr. CANADY. Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman. I just have a few questions.
One, Mr. Lance, does Idaho have a statute protecting the State flag of Idaho?
Mr. LANCE. Congressman Scott, Mr. Chairman, yes, we did. Of course, it's been rendered inert by the Supreme Court decision of 1989.
Mr. SCOTT. And if States had such flag protection laws and someone from another State happened to be passing through a State that, say, for example, had a confederate symbol as part of its flag, would people be—if those laws were constitutional—be in violation, get jailed for desecrating the confederate symbol?
Mr. LANCE. Mr. Chairman and Congressman, I'm not aware of any State that has any statutory enactment whereby the confederate flag is somehow protected statutorily. The 48 States that had the statutes in place, as I understand it, sir, dealt with either the State flag or the American flag, or some, both.
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Mr. SCOTT. You're aware that some State flags have the confederate symbol as part of its State flag?
Mr. LANCE. Idaho being somewhat neutral on that particular rebellion that you're referring to, sir, we don't have such a flag. [Laughter.]
Mr. SCOTT. Let me ask another question, just to anyone who wants to answer. Sometimes burning the flag would be desecration and sometimes it would not be desecration. Is that accurate?
Mr. LANCE. Mr. Chairman, if I may respond to——
Mr. SCOTT. And how would you tell the difference?
Mr. CANADY. Yes, Mr. Lance.
Mr. LANCE. Mr. Scott, the United States flag code and the accompanying manuals talk about retiring a flag of this country with respect and honor. I believe the American Legion posts, VFW posts, and others around the United States traditionally and very frequently have retirement ceremonies for American flags. It does constitute burning in most instances, but it's done with dignity, respect, and in fact there's a script that is to be read which is part of the flag code.
Mr. SCOTT. So if you burn the flag with dignity and respect, that would not be desecration. But if you burn the flag, same act——
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Mr. LANCE. Yes, sir.
Mr. SCOTT [continuing]. Without dignity and respect, that would be desecration punishable by imprisonment?
Mr. LANCE. Mr. Chairman and sir, it is my understanding that if you dispose of an American flag in compliance with the United States flag code that this body enacted, it would certainly be a defense to any claim that you have violated the proposed constitutional amendment or statutes which may be enacted. But again, I think prosecutors and juries within the several jurisdictions are smart enough to sort that out.
Mr. SCOTT. Could you imagine a prosecutor using his prosecutorial discretion deciding when someone has burned the flag with respect and someone who has burned the flag without respect—one of whom is going to be prosecuted, the other not prosecuted? Would you want to leave that to prosecutorial discretion?
Mr. LANCE. Well, sir, Mr. Chairman and Mr. Scott, I would much prefer to see it left to the State and local units of government to make those decisions. The present amendment, of course, would call for Congress to have the ability to make this an offense, which, of course, would require a United States attorney to make that decision. And although I disagree with U.S. attorneys on a very frequent basis, I would trust them to make that call.
Mr. SCOTT. You use the flag code as an example of how you can determine whether or not there's desecration or not desecration. You're aware that the flag code also prohibits the use of the flag in advertising?
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Mr. LANCE. Yes, sir, I am.
Mr. SCOTT. Would you want to jail those that use the flag in advertising as disrespecting, desecrating the flag?
Mr. LANCE. Mr. Chairman and Mr. Scott, there are a number of them that I'd like to jail. That was said in jest. [Laughter.]
Mr. SCOTT. I was going to rest my case. [Laughter.]
Mr. SCOTT. If anyone else wants to comment, those are the last questions and my time is about to run out. I yield back the balance of my time.
Mr. CANADY. Mr. Barr.
Mr. BARR. Thank you, Mr. Chairman. This debate last year, and I presume when we get to the floor, we'll see some rather unusual points made with regard to this amendment. In the last Congress we had—I witnessed a Member, at least one Member that I recall, taking the well of the House of Representatives of the United States of America with a large, American flag displayed right behind the Speaker's chair and making a statement to the effect that he didn't know what the American flag was. And he was serious. It wasn't something said in jest. He was very serious about it. He was vehemently opposed to the language that we have before us and the language that we had before us in the last Congress. And I presume that we'll see the same caliber of comments this time around.
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I'm a little bit intrigued, to follow on what the gentleman from Tennessee mentioned, Mr. Bryant. One thing that escapes me for those that—I guess, Mr. Korb and Ms. Shields fall into this category—who extol the great virtues in the American people and freedom of choice, and so forth, why it is that they're so worried about the provisions in our Constitution being utilized in practice? In other words, our Constitution provides for a way to amend it, that the people have the right to make those decisions and—I don't know whether it's fear that the American people would, in fact, through their representatives at the State level, support this, in opposition to their views, or what-not. But, as with the Balanced Budget Amendment, I really just fail to see why people oppose passing a resolution in the House and in the Senate to simply afford the American people an opportunity to have their voice heard on very important matters of national policy such as this.
I do give groups such as People for the American Way credit. They are very, very slick. They package their disdain for traditional American values in very, very nice words and packages. And I almost wiped a tear away from my eye until I realized that it was People for the American Way that was saying these things—a group that I firmly believe has done more to destroy the traditional and wonderful values on which this country founded over the last 30 years than any other single group in our history.
I think that this is a very appropriate amendment resolution that is before this body today. I think it is something that the vast majority of people believe in. I know, Mr. Korb, that anybody can come up with a question to ask any group of American people, American citizens, a question in such a way so that, you know, the result is precisely what the questioner would like the result to be.
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But the fact of the matter is that a large number of people, union workers—I was at an event in my district just a few weeks ago for the rollout of the F–22, which will be the most sophisticated weapon system to defend freedom in this country and around the world that has ever been built—built by union workers. And the patriotism that was displayed by those workers was truly awesome, not the slick and seductive words of standing up for American values and then going out and glorifying homosexuality, or whatever the People for the American Way are pushing on any particular week—very strong, bedrock American values that men and women have fought for over the years and have died for over the years.
To deny the people of this country the opportunity, which is all we're trying to give them, to give voice to both a tremendous frustration with what they've seen happen to this country over the last couple of generations, as well as to give them the opportunity to simply stand up for America, to stand up for this country and say that there are lines that have to be drawn—maybe we can't stop the glorification of homosexuality, maybe we can't stop the deterioration of families, but there is something that we can do to draw a line, to stand up for one thing that is more basic than anything other in our country, and that is the flag of this country.
I know what this flag is; it's right over there behind the chairman. The American people know what that flag is. They want to protect it, and I think we ought to give them the opportunity to do just that. And I resent the fact that some of you come up here and want to deny the American people the opportunity to at least have their voice heard. I think that's un-American.
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Thank you, Mr. Chairman.
Mr. KORB. Mr. Chairman, could I say something? Two of the Congressmen have made comments that I think need to be balanced.
Mr. CANADY. Well, you've had your opportunity to speak, and members are having their opportunity to ask questions now. I'd be happy to yield to the gentleman additional time, if he wants to yield time. OK, I'll now recognize Mr. Conyers who can recognize you, if he so desires.
Mr. CONYERS. Thank you, Chairman Canady, and good morning to this distinguished group here and to all of the people interested in this subject matter. We're always happy to hear you and see you.
Now this witness here has a very important, urgent statement he wants to make, right?
Mr. KORB. I would like to respond——
Mr. CONYERS. Would you? OK, I'm going to allow you to do that on my time on one condition: when I cut you off, you have to stop. OK. [Laughter.]
All right.
Mr. KORB. You set the rules, Congressman.
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I'd like to make a couple of comments. The American people support term limits; I think that term limits is a bad idea, and I'm glad that the Congress voted not to amend the Constitution to limit the terms of elected officials. So I don't believe the real issue here is allowing the American people to vote.
Similarly, Congressman Bryant talked about the eagle; we protect the eagle. We protect the eagle not because it is a symbol of the United States; we protect it because it's an endangered species. We used to protect alligators in Florida; we no longer protect alligators. So I think we have to be very, very careful about the analogies we use.
Congressman Barr was talking about the patriotism of the workers, when Lockhead Martin rolled out the F–22 fighter recently down in Georgia. I happen to think that the F–22 fighter is a weapon system we do not need and cannot afford. I don't think that that makes me unpatriotic, because I used to fly for the Navy.
Thank you.
Mr. CONYERS. Well, Mr. Korb, you know, it's good when Democrats and Republicans agree on something around here, and that's why I'm happy to yield you some time. As a former Reagan official, we're happy to join forces with you on this important issue.
Now, ladies and gentlemen, here's the problem, and I appreciate the passion on both sides. The problem is that this idea that you keep bringing up here again and again cannot be written in such a way as to pass constitutional muster. Now that's a dilemma of the American democratic system. We haven't—you haven't, you proponents of a constitutional amendment, haven't figured out a way to make it less vague, so that the Supreme Court would okay it. And so here we are again getting all heated up for Flag Day; this is, you know, political stuff. We'll rush this out for Flag Day.
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Well, the problem is that the same thing that was wrong in 1995 is exactly what's wrong now. So guess what? You're going to have about the same result that you got in 1995, and all the breast-beaters about their patriotism—and I've got a little myself—I hope you feel better about it, and you can get ready for 1999. But until somebody, some smart guy in the Congress or the Senate, writes this so that it is not so vague that a law student could figure out that the Supreme Court would have to knock it down, we're going to all be doing this little thing for a long time to come. Now that's just the way it is.
I don't happen to think it's such a great idea to start banning speech and action. It's a slippery slope. Once you get there, somebody else is going to have something else that ought to be knocked out. We heard some comments about homosexuals. Boy, let's—well, there's always somebody, isn't there?
And so now I want to stop, Mr. Chairman, and ask unanimous consent for 1 additional minute, and let anybody here that wants to respond to my observations do that. And I saw the lady from the American Way's hand go up first. So I'll recognize Ms. Shields.
Mr. CANADY. Without objection, the gentleman will have 1 additional minute.
Mr. CONYERS. Thank you, Mr. Chairman.
Ms. SHIELDS. Thank you.
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I think we've taught our students a number of things this morning: that people of good faith can disagree about important things; that polls can be used on both sides of almost any issue; that all civic work done in Congress is not necessarily very civilized. But the saddest thing that we've learned today is that the flag, while it should be our revered symbol of freedom that unites us, sometimes gets used to divide us. And I appreciate your comments. It is correct that it is not clear enough for anybody to take a very good position for, if they wanted to take a position for it, and so that proves the point that the political process is using the flag to divide us and we should all resist that as well.
Mr. CONYERS. Well, thank you, Ms. Shields.
And, dear friends, let's remember this: we're the only country on the planet that reveres expression and freedom of speech and elevates those ideals into the basic document of our country. And I just don't feel comfortable moving ahead in this same fashion when we know that the issues underneath this would never get settled. As a matter of fact, things would deteriorate. I mean, if you got your way, there would be so many lawsuits and squabbles about everything from neckties on down or up; it wouldn't—it would be a hollow victory.
Mr. CANADY. The gentleman's time has expired. Would you like an additional minute?
Mr. CONYERS. No. No, sir, I don't, and I thank you very much for your courtesy.
Mr. CANADY. OK, thank you.
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Mr. Hutchinson.
Mr. HUTCHINSON. Thank you, Mr. Chairman.
First, I want to thank all of the panelists for their presentations today, and I think it is important to acknowledge, and I certainly agree and would not dispute, the patriotism of people on both sides of this issue. I think that good people can disagree. I have great admiration for some of the veterans who do not support this amendment. I mean, they have the view that they fought for freedom for this country and that part of that freedom includes actions that I believe are reprehensible, which will be desecration of the flag. I think those veterans are in the extreme minority of veterans in our country, but I don't dispute their patriotism, and those who have testified on this panel.
But I believe that the flag rises to a symbol in our country that deserves protection, that is special. I was impressed with Representative Solomon's testimony this morning, which made note of the fact that it is our flag that we lower at half-mast in times of great national tragedy in our country. And I think also the fact that it is the unique symbol of the flag that we put on the caskets of our veterans, of our slain Presidents, because there is something special about that symbol.
And I know that every time I think of the Iwo Jima Memorial, where the soldiers tried to raise that flag, they did raise that flag, and it was an important symbol for them of our freedoms, and they have given their lives for that.
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And so I believe that it is appropriate that we protect that flag, and this resolution is meaningful to do that. I think it's appropriate to refer to the States.
Mr. Korb, I wanted to ask a question of you after those comments that I made. The Supreme Court has made a decision, 5 to 4 decision, that indicated that desecrating the American flag is protected speech, a very close decision. Do you, first of all, agree with that decision of the Court?
Mr. KORB. I do.
Mr. HUTCHINSON. OK. Do you believe that it is appropriate to amend the Constitution under certain circumstances?
Mr. KORB. I believe it is appropriate to amend it under certain circumstances, yes.
Mr. HUTCHINSON. I get the impression sometimes that we should just not doctor or tinker with the Constitution at all, and, obviously, you agree that there are some occasions that that is appropriate?
Mr. KORB. Very definitely.
Mr. HUTCHINSON. You agree that the Supreme Court—and the dissent was a strong decision or a strong statement that they made that burning the flag should be considered actionable conduct, and if they were to determine that it would have been action rather than speech, we certainly could regulate it?
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Mr. KORB. Very definitely. The Supreme Court has the final word on this particular issue.
Mr. HUTCHINSON. OK. And if the Supreme Court had tilted the other way, 5–4 in support of the laws of our country that prohibited flag desecration, do you believe it would have been important to amend the First Amendment to specifically allow flag desecration?
Mr. KORB. If the Supreme Court had ruled 5 to 4 the other way, no, I don't think the remedy would have to amend the Constitution. I think, as Mr. Conyers said, we would have had a heck of a lot of law cases trying to figure out exactly how to put that into practice. We would have had to deal with issues like whether the tie Congressman Ackerman was wearing is a Fona.
Mr. HUTCHINSON. And that's interesting to me, that if we had one more vote the opposite direction, that the Supreme Court would have upheld our State statutes, then you would have accepted that as a reasonably limitation on free speech?
Mr. KORB. That's right. The way our system works is that all sides you should have people express their opinions, but, ultimately, we have to make a decision, one way or another and then because you've had the right to express your opinion, it is incumbent for you to go along with the decision that is made.
Mr. HUTCHINSON. And I respect that, and I really think that's what this boils down to. I wish we would have had one gentleman or lady on the Supreme Court that would have held a different viewpoint, but that's all it would have taken. And I don't believe that one deciding vote on the Supreme Court is any more infallible that the 80 percent or 90 percent of the American public that supports this amendment, and that's where I believe the difference is today: that I have as much confidence, greater confidence, if you will, in the 80 percent of the American people than I do residing with that one particular Justice that made the deciding vote on that decision. So I think this is something that goes to value, the culture of our country, and for that reason I strongly, strongly support this, but I respect your testimony, all the witnesses today.
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I yield back the balance of my time.
Mr. CANADY. Thank you.
I want to join my colleagues in thanking all of you for being with us today. Your testimony has been very valuable. Obviously, there's a division here about the significance of the conduct that is involved in physical desecration of the flag.
I want to make one point about the points that were made about the uncertainty of the consequences of this amendment and the questions raised about what is physical desecration of the flag, what will be within the scope of that, what will not be within the scope of that.
First, the point about some uncertainty residing in the language is a point that could be made about any constitutional amendment. We could go through the existing provisions of the Constitution and could say, well, what does equal protection mean; what is an unreasonable search and seizure? So those kinds of questions are always around a constitutional amendment.
But let me also say that this is an issue that the amendment clearly contemplates the Congress will act on. We will pass enabling legislation which will flesh-out the scope of the prohibition. Now, obviously, there's going to be an outer limit beyond which we couldn't go, and that will be subject to interpretation by the Supreme Court ultimately. But the argument that Mr. Conyers advanced, that somehow the Supreme Court would strike this down, I just don't quite understand that. This is a constitutional amendment, and I think even the Supreme Court understands that they cannot strike down a constitutional amendment.
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And I'd like to follow up on what Mr. Hutchinson said about this and the comment of Mr. Korb that the Supreme Court ultimately decides. Well, the Supreme Court doesn't always ultimately decide. We have a Constitution in this country which provides for amendments by the people of this country, and we're seeing that process in action here today. And I think that we're really seeing an unprecedented example of that process working because 49 of the State legislatures have called on Congress to act on this subject. Now when people say that this is a trivial issue, I say they're wrong; it's not a trivial matter if 49 of the State legislatures are calling us to act, and there are a lot of other reasons it's not a trivial matter.
I think the gentleman sitting on the front row here, who we introduced earlier, could give testimony to why they believe it's not a trivial matter. But we are acting, I think, in the best traditions of constitionalism in this country in addressing this issue, and I don't think that it hurts from time to time for the people to say, no, we don't agree with that. The Supreme Court does speak in interpreting the Constitution, but they are not infallible. They are not infallible, and, ultimately, the people, through the constitutional process, can see their values vindicated.
And with that, I want to, again, thank all of you for being here. We very much appreciate your participation, and we'll now move to our third panel.
[Mr. Canady uses the gavel.]
The hearing is still in session.
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All the members of the third panel should come forward and be seated. The hearing is going to continue. So if you need to have a conversation, please have it elsewhere.
Before we go to our third and final panel for the introduction of the members of the panel, I'd like to recognize Mr. Barr briefly for an introduction.
Mr. BARR. Thank you, Mr. Chairman.
Mr. Chairman, I was not here earlier in the morning when the chairman properly recognized our Medal of Honor winners here today, but I did want to pay a special word of welcome and respect to General Raymond Davis, who hails from my great State of Georgia. I'm very familiar with him and the tremendous work that he has done in support of freedom in the Korean War, and I just want to especially welcome him here today before this subcommittee.
It's an honor to have you here, General Davis.
Mr. CANADY. Thank you, Representative Barr.
Now to our third panel—we will begin our third panel with testimony from Professor Richard Parker. Professor Parker has been a professor of law at Harvard Law School since 1979 and testified before the subcommittee on this issue in the 104th Congress.
Second on the panel is Professor Norman Dorsen. Professor Dorsen is the Stokes Professor of Law at the New York University School of Law. Professor Dorsen also served as the president of the American Civil Liberties Union from 1976 until 1991.
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Following Professor Dorsen will be Representative Robert Zukowski. Mr. Zukowski is a member of the Wisconsin State legislature.
Next we will hear from Mr. Roger Pilon. Mr. Pilon comes to us from the CATO Institute, where he is the founder and director of the Center for Constitutional Studies.
Rounding out today's testimony will be Major General Patrick Brady. General Brady is the chairman of the Citizens Flag Alliance and is the recipient of the Congressional Medal of Honor.
I want to thank each of you for coming today, and I would ask that you please summarize your testimony in no more than 5 minutes, if that is at all possible. Without objection, your testimony will be included in the hearing record. And I should take the opportunity to commend the members of our second panel for staying within the 5 minutes. They did much better than the members of the first panel, I'll have to note. [Laughter.]
But we appreciate each of you being with us today.
Mr. Parker.
STATEMENT OF RICHARD D. PARKER, PROFESSOR OF LAW, HARVARD UNIVERSITY
Mr. PARKER. Thanks very much, Mr. Chairman.
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Let me make clear, first, the fundamental basis of my support for this proposed amendment. I am a civil libertarian. Perhaps I should add that I'm a one-time worker in the civil rights movement, and a long-time member and co-chair of my town Democratic party committee. I believe in speech, which is, as Justice Brennan said, ''robust and wide-open,'' and it's because of that belief that I support this amendment. A robust system of free speech is possible only if there are certain very minimal, but basic parameters, substantive parameters, to what people are permitted to say.
This is particularly the case in a time when, as the President has noted, we seem to be splitting apart and turning against one another as a society. In such a situation, where the centrifugal force that Representative Hyde spoke of is at work, unpopular groups, and minority groups, are particularly threatened.
Justice Brennan saw this point in the mid-sixties in the Times v. Sullivan case. Writing for the Court, he made clear that we need not permit people to make knowing false statements about the official conduct of public officials which damage the reputation of those officials. Such speech may be prohibited. Indeed, Justice Brennan said, that same year, that such speech is ''at odds with the premises of democratic government.'' So we should prohibit it. It seems plain to me that the ideals represented by the flag, the ideal aspiration to national unity, is, if anything, of more importance as a parameter, allowing for the robustness of speech, than is respect for our public officials.
The other point I'd like to emphasize now is the moderation of this amendment. Representative Conyers commented that the amendment can't be written to pass constitutional muster. Like the chairman, I was puzzled by that statement. I agree with the chairman that the Supreme Court would not declare a constitutional amendment, properly ratified, unconstitutional, but perhaps the following four points would address the concerns that Representative Conyers had in mind:
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First, this, particularly by comparison with other amendments in the present Constitution and presently proposed amendments, is very narrowly-drafted. It would allow prohibition only of physical desecration of the flag. The key terms ''physical desecration'' and ''flag'' have long been present in laws of the United States as well as the States. Members of the Congress, in the Flag Protection Act of 1989, which passed overwhelmingly, adopted a definition of what counts as a flag. At that time, Members of Congress did not seem to feel that this was an insuperable problem. I agree with the attorney general of Idaho that we should trust our courts and juries in this respect.
Secondly, this amendment, of course, has no effect whatever by itself. It has effect only if and when Congress, subject to presidential veto, decides to enact a statute under the amendment. I would hope that Congress might be willing to cut itself some slack in this respect and not be too afraid of itself in the process of defining a statute under this law.
Thirdly, all this proposed amendment would do is restore constitutional law to its state prior to 1989, the state in which it had existed for roughly 200 years. And I ask you, Were we a tyranny, were we a dictatorship, prior to 1989? I can't believe anyone would say that. Therefore, I find it difficult to understand why people predict dictatorship now if we pass this amendment.
Finally, and my last point, this proposed amendment would uproot no principles, existing principles, of constitutional law, and it would add none. It would simply correct a misapplication of principle by five of the Supreme Court justices. It would state clearly that the flag is not just one point of view among other points of view.
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If the Justices had not made that mistake in 1989, existing principles would clearly have led them to uphold laws prohibiting physical desecration of the flag, as this constitutional amendment would now permit. Thank you.
[The prepared statement of Mr. Parker follows:]
PREPARED STATEMENT OF RICHARD D. PARKER, PROFESSOR OF LAW, HARVARD UNIVERSITY
I am a civil libertarian. I believe that, in a democracy, freedom of speech must be ''robust and wide-open.'' Indeed, I believe it ought to be more robust and wide-open than the Supreme Court has, on some occasions, been willing to grant. It's because of that belief that I support a new constitutional amendment, one that would permit the Congress—if it so chooses—to protect the flag of the United States against physical desecration.
Let me begin with general principles. My basic proposition is this: Whether freedom of speech is in fact robust and wide-open does not depend solely, or even primarily, on case-by-case adjudication by the courts. It depends most of all on conditions of culture. First, it depends on the willingness and capacity of people to express themselves energetically and effectively in public. Second, it depends on acceptance as well as tolerance, official and unofficial, of an extremely wide range of viewpoints and modes of expressions. And, third, it depends on respect for very basic parameters that, like constitutional provisions in general, help structure democratic life the better to release its energies.
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This last condition is the one that concerns us now. Everyone agrees that there must be ''procedural'' parameters of free speech—involving, for example, places and times at which certain modes of expression are permitted. In addition, everyone accepts certain ''substantive'' parameters of speech content. The following principle, after all, is clear: Government not only may sometimes regulate the content of speech—sometimes it should do so in order to protect the system of freedom of speech in general.
The Supreme Court affirms this principle. It refuses to privilege speech that threatens to cause imminent tangible harm: face-to-face fighting words, incitement to violation of law, shooting ''fire'' in a crowded theater. And it does not stop there. It also rules out protection of speech that threatens certain intangible, even diffuse, harms. It has, for instance, described obscenity as polluting of the mortal ''environment.'' But what about ''political'' speech? What about speech critical of the government? Isn't there a bright line protecting that, at least so long as no imminent physical harm is threatened? The answer is: No. The Court has made clear that the content of speech criticizing the official conduct of a public official May be regulated if it is known to be false and damages the reputation of the official.(see footnote 2) The Court, indeed, has gone farther and suggested that such speech should be regulated since it is ''at odds with the premises of democratic government.''(see footnote 3) This rule was set forth by the Warren Court. It was announced in opinions by Justice Brennan the very opinions that insisted freedom of speech be ''robust and wide-open.''
Recently, a consensus has been growing around the following proposition: Important ''substantive'' parameters of public expression, parameters that have long been taken for granted, now need to be restored. The bounds that hold us together—and so make it possible, as in a healthy family, to engage in ''robust'' disagreement with one another—appear to be disintegrating. On the right, on the lift and in the center, it is widely agreed that certain parameters must be reestablished if free speech, in general, is to flourish.
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On the right, it's a believed that ''uncivil'' and ''unreasoned'' speech content needs to be checked. The Supreme Court, on occasion, has interpreted the First Amendment in light of that belief. The problem, of course, is that this tends to invite regulation of speech content that is very broad and vague, suffocating free, spontaneous participation in the marketplace of ideas. On the left, it's believed that ''hate'' speech—beyound face-to-face harassment of fighting words—needs to be checked. On occasion, the Court has read the First Amendment in light of that belief as well. The problem, again, is that this tends to invite broad and vague regulations suffocating freedom and spontaneity in public speech. What's worse, both these prescriptions—by drawing blunt distinctions among ''types'' of speech and speakers—may, unintentionally, tend to set us apart from each other, even further disintegrating—instead of reaffirming—the bounds that unite us even in disagreement.
In the center, however, there is widespread support for restoration of a much narrower, more focused parameter: protection of the U.S. flag from physical desecration. This proposal, first of all, avoids of the vices of the broader, vaguer alternatives. Its virtue, moreover, is that—by means of an extremely minimal constraint on freedom, taken for granted until recently—it affirms the most basic conditions of our freedom: our bond to one another in our aspiration to national unity. It leaves it to individuals, in a thousand other ways, to criticize government and even that aspiration to unity, if they want. But if affirms that there is some commitment to others, beyond mere obedience to the formal rule of law, that must be respected. It affirms that, without some aspiration to national unity—call it patriotism if you choose—there might be no law, no constitution, no freedom.
Still, objections abound. Is this ''important'' enough? Is it ''needed?'' Is it likely to be ''effective?'' Aren't there ''less drastic alternatives?'' Isn't it too ''risky?'' These questions deserve answers.
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II
A common objection goes like this: True, the aspiration to national unity is vital but, as embodied in the flag, it is just symbolic. What place does symbolism have in the Constitution? The answer is that the framers of the Constitution put symbolism of our unity at the very beginning of the document, invoking ''We the People of the United States.'' And, very near the end, they required that all officials, high and low, be ''bound by Oath or Affirmation, to support his Constitution''—a provision that, surely, is less functional than symbolic, yet whose symbolism fulfills, nonetheless, an important function. Animating the whole Constitution of 1787, after all, was the aspiration to call into being a new sense of commitment, a commitment to a broad and deep national unity-despite-difference. What was it, at the beginning, but a bold symbolic effort?
But, we hear, that's all over now. The nation exists. What need is there to revisit old ideals? Yet the framers knew that nothing, on its own, lasts forever. Every institution must be reenergized by every generation to meet new challenges. Can we deny that our generation is now challenged to renew our commitment to unity-despite-difference? The aspiration to even a minimal unity is, once more, commonly put in question. We hear that the freedom the flag symbolizes is the freedom to burn it, that our unity consists simply in a celebration of disunity. These claims go to the heart of our Constitution. It is in the Constitution that we must answer them.
We hear that flag desecrators are like a few ''naughty, nasty children'' trying to ''provoke their parents.'' The rest of the family, we hear, need only ''count to ten.''(see footnote 4) Take the analogy seriously for a moment. How healthy is a family in which there are no limits to expressive abuse, in which everything can be trashed and will be tolerated? Desecration of our mutual bonds as a nation maybe fairly rare.(see footnote 5) But so are many wrongs we believe it important to forbid. What is at stake is a principle, a minimal one. It deserves minimal respect—as a matter of principle.
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To boil down the fundamental value at stake here: Recall the civil rights movement. Recall not only its invocation of national ideals, but also in evocation of nationhood. Recall the famous photograph of the Selma marchers carrying flags of the United States. The question is: Will the next Martin Luther King have available to him or her a basic means of identification with all the rest of us—an embracive appeal to the bonds that, in aspiration and potential, make us one?
III
We are told there are other effective ways, short of an amendment, to protect the flag. Specifically, we're told (1) that Congress might do it by statute of (2) that the states might do it by enforcing laws against theft, vandalism or ''fighting words'' already on the books or (3) that the ''voluntary feelings'' of the people and ''counter-speech'' condemning flag desecration now provide plenty of security for this unique symbol. In fact, none of these are effective alternatives.
Reliance on yet another federal statute would be reliance on a mirage—a proven mirage. In 1990, after Johnson, the Congress tried this approach. And, swiftly, it was slapped down by a 5–4 vote on the Supreme Court in Eichman. There is absolutely no reason to believe that the Court, as now constituted, would reverse itself. In 1995, the Congress accepted this as a fact of life. I trust it is not any more inclined to indulge in fantasy in 1997.
Reliance on enforcement of laws against theft, vandalism and ''fighting words'' would be hardly less fantastic. Most of the American flags that are physically desecrated are, after all, the property of the desecrators. Thus theft and vandalism are not involved. And ''fighting words'' prosecutions have long been sharply narrowed by the courts to cases of face-to-face challenges to fisticuffs between specific individuals. Most instances of physical desecration—the ripping of a flag in the rotunda of the Michigan State Capitol in January 1997 was a typical example—involve no such challenge. What's more, reliance on laws like these wouldn't simply be futile. By treating the flag as just another piece of cloth, it would miss the point as well.
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The point, of course, is to ensure respect for this unique symbol of our aspiration to unity-despite-difference. To be sure, this respect ought to flourish in the ''voluntary feelings'' of the people. But that doesn't mean that a law protecting the flag is not now needed. Who can doubt that, very often, legal proscriptions do in fact influence the ''voluntary feelings'' of the people? (Think, for a moment, of the civil rights laws.) Who can doubt that, often, they both express and work to maintain those feelings?
Why isn't it enough, though, to criticize the desecrators or fly the flag ourselves? Ordinarily, I agree, ''counter-speech'' is the best response. But this situation is unique, just as the flag is unique. Once it is permissible not just to heap verbal contempt on the flag, but also to burn it, rip it and smear it with excrement—once such behavior has been specifically protected in law by the Supreme Court—then the flag is already decaying as the symbol of our aspiration to the unity underlying freedom. The flag we fly in response is no longer the same thing. We are told, again and again, that someone can desecrate ''a'' flag but not ''the'' flag. To that, I simply say; Untrue. This is precisely the way that general symbols like general values are trashed, particular step by particular step. This is the way, imperceptibly, that commitments and ideals are lost.
IV
What are the risks, if any, of proposing to amend the Constitution this way? All kinds of fears have been stirred up. I'll comment on two. First, I'll address some rather specific fears: Would the proposal ''amend''—or ''desecrate''—the First Amendment? Then, I'll turn to more generic fears: Would it upset the ''delicate balance'' of the Constitution as a whole?
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The proposal would not ''amend the First Amendment.'' Rather, each amendment would be interpreted in light of the other—much as is the case with the guaranties of Freedom of Speech and Equal Protection of the Laws. When the Fourteenth Amendment was proposed, the argument could have been made that congressional power to enforce the Equal Protection Clause might be used to undermine the First Amendment. The courts have seemed able, however, to harmonize the two. The same would be true here. Courts would interpret ''physical desecration'' and ''flag of the United States'' in light of general values of free speech. Experience justifies this much confidence in our judicial system.
But, we're asked, is ''harmonization'' possible? If the principles invoked in Johnson and Eichman to protect flag desecration were rooted in established lines of free speech argument—as they were—how could an amendment correcting those decisions, returning the law to the prevailing interpretation of the preceding two centuries, coexit with ''the First Amendment?''
First, it's important to keep in mind that free speech law has within it multiple, often competing lines of argument. The four dissenters in Johnson and Eichman—no less than their five colleagues—invoked principles that were rooted in established arguments about the meaning of freedom of speech. Second, even if the general principles invoked by the majority are admirable in general—as I believe they are(see footnote 6)—that doesn't mean they were applied properly. That is, we may agree that government may not impose sanctions to ''take sides'' for or against specific ''points of view.'' Nonetheless, we may insist that respect for the flag should not be categorized as just another ''point of view.'' Thus, third, the proposed amendment poses no fundamental challenge to the majority's principles. It simply affirms that the flag is sui generis as the unique symbol of our aspiration to national unity, an aspiration that (as I've said) nurtures—rather than undermines—freedom of speech that is ''robust and wide-open.''(see footnote 7)
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The proposed amendment is not intended to—and does not—discriminate against specific ''messages.'' Those who desecrate the flag may be doing so to communicate any number of messages. They may be saying that government is doing too much—or too little—about a particular problem. They may be burning the flag to protest the views of non-governmental groups, even to support efforts of the government to squash those groups. Or they may simply be trashing the flag to get media attention. Laws enacted under the proposed amendment would apply to all such activity, whatever the specific ''message.'' One, and only one, mode of expression could be regulated: ''desecration'' of the flag. And regulation could extend no farther than a ban on one, and only one, extreme instance of it: ''physical'' desecration.(see footnote 8)
One objection remains. It involves ''desecration.'' Would this word, evoking profound respect and even sacredness, itself ''desecrate'' the Constitution? Those who put the objection this way defeat themselves, of course. If the Constitution as a whole is ''sacred,'' as they suggest, then there is no text in which reference to ''desecration'' of the symbol of the nationhood that undergirds it could be more at home. Beyond the play on words, however, it's useful to keep in mind that this word—like any number of others in the constitutional text—is a term of art. It has no religious connotation. The Constitution of Massachusetts, for instance, provides that the right to jury trial ''must be held sacred,''(see footnote 9) and no one reads that as a theological mandate. The question for courts interpreting the proposed amendment would be: What sorts of physical treatment of the flag are so grossly contemptuous of it as to count as ''desecration?'' This is the type of question—raising issues of fact and degrade, context and intent—that they resolve year in and year out under practically every other constitutional provision.(see footnote 10)
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There is, then, nothing radical about this proposed amendment. What hides its moderation may simply be a generic fear of any proposed constitutional amendment—or, at least, of any that is driven by wide public support. Opponents of a flag amendment evoke this fear, suggesting the ''delicate balance'' of the Constitution is in jeopardy. In the ways they make the suggestion, however, they reveal it to be misleading, even perverse.
They tell us that the Constitution is perfect. Or they talk of its fragility. The document they imply, is too fine or too delicate to amend. But a part of its ''perfection'' must be Article V, which provides for its amendment. It has, after all, been amended many times. (The framers' generation added ten amendments in one swoop.) And, far from proving fragile, it has proved to have extraordinary tensile strength, enduring by adapting to circumstances—changing and unforeseen—just as, long ago, Chief Justice John Marshall promised it would.(see footnote 11)
Yet, they tell us, any proposed constitutional language will have unintended consequences—unless we pin down, right now and forever, every jot and title of its meaning. This is sometimes an effective strategy of opposition. It was deployed, for example, against the Equal Rights Amendment nickled and dimed to death in disputes over hypothetical details.(see footnote 12) The proposed flag amendment is far narrower and, so, far less vulnerable to such opposition. But those who supported the ERA—and deplored the strategy then—should be loath to use it now. It is, in any event, deeply misguided. For if (as John Marshall taught us) the genius of our Constitution is to endure through adaptation, then any pretense to fix its precise meaning, once and for all, is futile. Few constitutional provisions—few of those in the Bill of Rights, for instance—could pass such a test. Hence, the lesson of our history is: Leave future details of application to the future; trust our judicial system; and stick, for the moment, to issues of fundamental principle.
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When all is said, opponents are left with one line of argument. You ought not, they say, ''fool with'' the Constitution. You should not ''tinker'' or ''fiddle'' with it. You must not ''trivialize'' it. Here is what's fascinating; Such verbs are rarely used to describe judicial interpretations or lawyers' interpretations or academic interpretations of the Constitution. They're reserved, instead, for the process of amendment prescribed by Article V. They're reserved, especially, for amendments proposed not by ''experts,'' but by large numbers of ordinary citizens and their representatives. The disdain in such language is clear. It is, I believe, a disdain for the processes of democracy and for the ordinary people who take part in them. The implication is that the Constitution—which establishes processes for its own amendment—is too elevated, too refined, to be touched by those very processes.
In the end, that's what is at stake here: Our flag symbolizes our nation. It is a nation defined not by any shared ethnicity, but by a political practice, the practice of popular sovereignty, of democracy. It is through democracy that our law, including constitutional law, is made. It is through democracy that our liberties are nurtured and exercised and guaranteed. It is through democracy that we are bounded to one another. Shouldn't the people be authorized, if they choose, to require a very minimal respect for that one symbol, that one value, that one aspiration?
Mr. CANADY. Thank you, Professor Parker.
Mr. Dorsen.
STATEMENT OF NORMAN DORSEN, STOKES PROFESSOR OF LAW, NEW YORK UNIVERSITY SCHOOL OF LAW
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Mr. DORSEN. Thank you very much. You were good enough to introduce me by mentioning that I had been president of the American Civil Liberties Union for almost 15 years. Today, of course, I'm testifying not on behalf of the ACLU, but on behalf of the Emergency Committee to Defend the First Amendment, which is composed overwhelmingly of conservatives and moderates. My two co-chairs are Michael McConnell, a former official in the Reagan administration, and William Reece Smith, from your State of Florida, a very prominent Tampa lawyer who is a former president of the American Bar Association.
Professor Parker, an old colleague of mine, argues that this amendment should be passed because it will enhance freedom of speech, but it's a rather strange result to enhance freedom of speech by curtailing freedom of expression. And the fact of the matter is, no matter how one looks at this, the historic choice before the Congress and possibly the States is whether we protect the flag or we protect the Constitution. That's the reason that so many conservatives and moderates have gathered in this emergency committee to defend the Constitution.
Of course, the flag is a revered national symbol that properly stirs deep emotions and loyalties. Many of the brave men who sit behind me today deserve as much credit as they have been given in this room and much more. But, nevertheless, passing this amendment is both unnecessary and unwise. It's unnecessary because there is no apparent loss of esteem for the flag, based on the extremely few incidents in which individuals have chosen to physically abuse the flag in the course of political protest. Some people have cited figures (which I'm not sure) but let's assume that 80 or 90 percent of the people want this amendment. What that means to me is that they revere the flag. I don't know why we need a constitutional amendment which will restrict freedom of expression in order to state what already is the fact.
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Now there's been a lot of discussion—and Mr. Scott, I thought, made some very good points—about the problem of interpretation. It's true that Congress will have to implement an amendment if it goes through, and possibly some clarification will take place. But I don't see how you'll be able to avoid two problems: what is a ''flag'' and what is ''desecration?'' I gather Mr. Ackerman, one of your colleagues, had a tie with a flag on it. That's only the most immediate example. But what about a delectable Fourth of July cake that has a flag on it and is then eaten or a flag on the back side of blue jeans? Somebody's going to have to decide these issues. I agree with the former attorney general of Idaho that prosecutors and courts will decide them. Is this the kind of issue we want our public officials to be dealing with at a time of what Mr. Hyde said earlier is a time of national crisis?
But the most important reason, that the proposed amendment should be rejected is that it would compromise the principle of unfettered political expression, and it will do so by placing a constitutional limit on the substance of the Bill of Rights, and specifically on the First Amendment, for the first time in our history. We urge the Congress not to dilute this precious attribute of our constitutional system.
I think I understand the contrary argument. It is that the flag is special, and that to permit its physical abuse would weaken its symbolic effect. When this contention was made to the Supreme Court, Justice Antonin Scalia responded directly. He said, ''Not at all. When somebody does that to the flag, it becomes even more a symbol of our country.'' Justice Scalia is the leader of the conservative wing of the High Court. When he and Justice Anthony Kennedy, another conservative, joined the Johnson and Eichman opinions, they understood that punishment of those who use the flag in this way is not conservative. To the contrary, it is inconsistent with the Nation's deepest values which conservatives traditionally support.
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Indeed, one can responsibly suggest, as my colleague, Professor McConnell has done that supporting this amendment would make the flag into an icon, veering close to idolatry, because the concept of desecration applies only to religious objects and not to other things, no matter how justly admired. Indeed, an article in the journal Christianity Today made exactly this point when it opposed efforts to make the flag sacred, although it was not a religious object.
The argument that, in my opinion, is at the bottom of the entire controversy, putting politics to one side, is the statement made by several people—Mr. Barr referred to it; Mr. Hyde referred to it—that the country in some way is losing its center, that respect is being lost by young people, the failure to vote that someone referred to, the decline in morals, the lack of principle. The question is, Would prohibition of flag desecration cure these ills? Would they uplift our country? It is very difficult for me to see how it would. Indeed, in my opinion, it would cause even more divisiveness, even more harm, because people will know that this is a quick and unsatisfactory solution.
In commenting on the flag desecration amendment that was proposed in 1989, the late Erwin Griswold, former dean of Harvard Law School, former Solicitor General in the Nixon and Johnson administrations, observed that when public pressure would drive lawmakers to imprudent action, the situation calls for statesmanship, the same statesmanship shown in Philadelphia in 1787 when the Founding Fathers drew up the Constitution. Dean Griswold aptly referred to Chief Justice Harlan Fiske Stone's wise caution that ''at such times we should rely on the sober second thought of the community in order to avoid a great mistake.''
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Members of the subcommittee, I respectfully urge you to follow Dean Griswold's advice and not seek a quick fix for a nonexistent issue. This is a time for leadership to preserve our Bill of Rights from the first amendment in its history.
As a Texas Representative said when the issue was presented in 1990, ''I do deeply love the flag because it symbolizes the United States, but I love the ideals put into words by the U.S. Constitution even more than the flag.'' Or as the Nebraska Representative said the same year, when he finally decided to oppose the amendment, ''I don't want my tombstone inscription to be that I supported an amendment to weaken the Constitution.''
The brave veterans here today fought, and the flag is the symbol of the country for which they fought, but the reality of the country is its liberty, as reflected in its history and in the Constitution and Bill of Rights. The greatest patriotic act you can perform on this issue is to resist the easy path and stand loyally by the Constitution and Bill of Rights by defeating this unwise and unnecessary amendment.
Thank you very much, Mr. Chairman, and members of the subcommittee.
[The prepared statement of Mr. Dorsen follows:]
PREPARED STATEMENT OF NORMAN DORSEN, STOKES PROFESSOR OF LAW, NEW YORK UNIVERSITY SCHOOL OF LAW
Mr. Chairman, distinguished members of the subcommittee, I am testifying today on behalf of the Emergency Committee to Defend the First Amendment, the sole purpose of which is to oppose a constitutional amendment to permit either the United States or the States to outlaw flag desecration as a method of protest or expression. I have been a co-chair since the Committee was founded in 1989. The other co-chairs of the Committee are William Reece Smith, Jr., senior partner of the Tampa, Florida, law firm of Carlton, Fields, Ward, Emmanuel, Smith & Cutler and a former president of the American Bar Association, and Michael W. McConnell, Professor of Law at Utah Law School and a former official in the Reagan Administration. Earlier co-chairs of the Committee were the late Erwin N. Griswold, former U.S. Solicitor General and former Dean of Harvard Law School, and Charles Fried, also a former U.S. Solicitor General and now a judge of the Massachusetts Supreme Judicial Court.
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I will briefly note my background. After graduation from Harvard Law School in 1953, I performed military service as a first lieutenant in the Army, serving in the office of the general counsel to the Secretary of the Army. I also was a law clerk to Justice John Marshall Harlan on the U.S. Supreme Court. I practiced in the law firm of Dewey Ballantine in New York City before my appointment in early 1961 to the faculty of New York University Law School, where I have since taught continuously. From 1969 to 1991 I was general counsel and then president of the American Civil Liberties Union, and I am currently chairman of the board of the Lawyers Committee for Human Rights and president of the U.S. Association of Constitutional Law. But I testify today solely on behalf of the Emergency Committee to Defend the First Amendment.
The issue of whether to amend the Constitution to permit criminal punishment for flag desecration has been before the Congress and the country several times since the Supreme Court held, in the 1989 case of Texas v. Johnson, that such punishment violated the First and Fourteenth amendments to the Constitution. But the fundamental issue has not changed. It is, very simply, whether we protect the flag or the Constitution. We cannot do both. That is the reality and, at bottom, why the Emergency Committee—composed mainly of conservatives and moderates—urges the defeat of the Resolution before you.
Of course the flag is a revered national symbol that properly stirs deep emotions and loyalties. And of course the Congress has the power to propose a constitutional amendment to the States for ratification that would prohibit its desecration. But such an action is both unnecessary and unwise.
It is unnecessary because there is no apparent loss of esteem for the flag based on the extremely few incidents in which individuals have chosen to physically abuse the flag in the course of political protest. It is also unnecessary because existing laws are ample to punish incitements to riot or breaches of the peace caused by flag burning or other acts of desecration.
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An amendment would be unwise for several reasons. Initially, there will be uncertainty and confusion over just what the amendment prohibits. In an era when the flag is used, not always tastefully, for commercial purposes and on a variety of festive occasions, it is a good bet that prosecutors and courts will be kept busy trying to determine just what a ''flag'' is and to sort out what constitutes ''desecration'' from what doesn't. For example, would a flag patch on dusty blue jeans or a flag on a delectable Fourth of July cake be punishable? Once the criminal law became involved, these would not be frivolous questions for many people.
The most important reason that the proposed amendment should be rejected is that it compromises the principle of unfettered political expression that is a cornerstone of American liberty, and it would do so in an unprecedented way—by placing a constitutional limit on the substance of the Bill of Rights for the first time in more than 200 years. One of the glories of our form of government is its tolerance for expression that other countries would ruthlessly punish. We urge the Congress not to dilute this precious attribute of our constitutional system.
As the Supreme Court said so well in the Johnson case, and again in U.S. v. Eichman the following year, to punish those who desecrate the flag for political or social purposes would violate ''the bedrock principle underlying the First Amendment . . . that the Government may not prohibit expression of an idea simply because society finds the idea offensive or disagreeable.'' The Court cited 13 precedents that supported this fundamental proposition.
I understand the contrary argument. It is that the flag is special and that to permit its physical abuse would weaken its symbolic effect. When this contention was made to the Supreme Court, Justice Antonin Scalia responded directly. ''Not at all,'' he said, when somebody does that to the flag it becomes ''even more a symbol of the country.'' Justice Scalia is the leader of the conservative wing of the high court. When he and Justice Anthony Kennedy joined the Johnson and Eichman opinions, they understood that punishment of those who use the flag this way is not ''conservative''; to the contrary, it is inconsistent with the Nation's deepest values, which conservatives traditionally support.
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Indeed, one can responsibly suggest that those who would make the flag into an icon are veering close to idolatry because the concept of ''desecration'' applies only to religious objects and not to other things, no matter how justly admired. Indeed, an article in the journal Christianity Today made exactly this point when it opposed efforts to make the flag ''sacred'' although it was not a religious object.
There is another reason why the proposed constitutional amendment is unattractive to many conservatives. Conservatives do not tinker with fundamental law whenever a segment of public opinion—even a large segment—becomes exercised about an issue. Not counting 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, when there is no genuine crisis or even a serious problem, would be an extraordinary act that could lead to unpredictable mischief in coming years.
In commenting on the flag desecration amendment that was proposed in 1989, the late Erwin Griswold observed that when public pressure would drive lawmakers to imprudent action, ''the situation calls for statesmanship, the same statesmanship shown in Philadelphia in 1787 when the Founding Fathers drew up the Constitution.'' Dean Griswold aptly referred to Chief Justice Harlan Fiske Stone's wise caution that at such times we should rely ''on the 'sober second thought of the community' in order to avoid a great mistake.''
Members of the Subcommittee, I respectfully urge you to follow Dean Griswold's advice and not seek a quick fix for a non-existent issue. This is a time for leadership to preserve our Bill or Rights from the first amendment in its history. As a Texas Representative said when this issue was presented in 1990, ''I do love the flag because it symbolizes the United States, but I love the ideals put into words by the U.S. Constitution even more than the flag.'' Or as a Nebraska Representative said the same year when he finally decided to oppose the amendment, ''I don't want my tombstone inscription to be that I supported an amendment to weaken the Constitution.''
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The greatest patriotic act you can perform on this issue is to resist the easy path and stand loyally by the Constitution and Bill of Rights by defeating this unwise and unnecessary amendment.
Thank you very much.
Mr. CANADY. Thank you, Professor Dorsen.
Mr. Zukowski.
STATEMENT OF HON. ROBERT K. ZUKOWSKI, STATE REPRESENTATIVE, WISCONSIN STATE LEGISLATURE
Mr. ZUKOWSKI. Thank you, Chairman Canady, honorable committee members, for this opportunity to testify before the House Judiciary Subcommittee on the Constitution. I am State Representative Robert Zukowski from the 69th district of the great State of Wisconsin and also a retired dairy farmer.
I appreciate the opportunity to speak before this congressional committee today on the need to strengthen the United States Constitution in order to protect our national symbol from acts of desecration. It is for this reason that I join with thousands of freedom-loving Americans urging you, as Members of the 105th Congress, to pass legislation to protect this living symbol of democracy from heinous acts of physical desecration.
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Wisconsin residents were recently horrified by such an attack by an 18-year old Appleton man who was seeking to strike a blow to our national conscience. Matthew Janssen, a self-proclaimed anarchist, stole a flag, a United States flag, from the municipal golf course and proceeded to defecate on it, later then placing it on the clubhouse steps. He then left a note proclaiming, ''The anarchist platoon as invaded Appleton, and as long as you put up American flags, we are going to burn them.''
What is even more disheartening about this incident is the decision by Judge John DesJardins, who then dropped the flag desecration charge against Mr. Janssen after stating that Wisconsin's flag desecration statute was unconstitutional. Judge DesJardins said he was merely following the High Court's lead of striking down a well-defined 1919 Wisconsin law under the guise of freedom of speech.
Decisions such as these which allow the U.S. flag to be set ablaze, trampled, spit or defecated upon, are shocking to our Nation's conscience. Indeed, many incidences involving this type of desecration occur in smaller communities throughout the United States and are never even reported because they know nothing can be done about it. So a lot of them are not even reported.
Through these rulings, the Court has sent a clear message that the only recourse available to those seeking to protect the flag is an amendment to the Constitution. What we have now is not working.
Thank you for this opportunity to testify before this congressional committee on the need to protect our national symbol, so that it may continue to wave proudly as a representation of the power of the American ideal. I urge passage of H.J.R. 54, and I think I've done fairly well for a politician on time. Thank you. [Laughter.]
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[The prepared statement of Mr. Zukowski follows:]
PREPARED STATEMENT OF ROBERT K. ZUKOWSKI, STATE REPRESENTATIVE, WISCONSIN STATE LEGISLATURE
Thank you Chairman Canady, Honorable Committee Members, and special guests for this opportunity to testify before the House Subcommittee on the Constitution today. I am State Representative Robert Zukowski and I represent the 69th Assembly District in the great State of Wisconsin.
I appreciate the opportunity to speak before this Congressional Committee today on the need to strengthen the United States Constitution in order to protect our national symbol from acts of desecration.
The flag of the United States of America is symbolic of this great experiment we call democracy. As our national symbol, the flag transcends all manner of political controversies, geopolitical obstacles, racial and ethnic barriers and socioeconomic disputes.
Old Glory unites not only the American people, but serves as a beacon of hope to all who thirst for freedom throughout the world.
For over 200 years, The Stars and Stripes has kindled the fires of freedom for Americans, allowing our nation to persevere as the leader of the free world.
As Memorial Day approaches, it is only fitting that our nation honor those brave men and women who have fought and in many cases, give the ultimate sacrifice fighting under this flag which embodies the ideals and beliefs that bind us together as a nation.
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However, not all attacks on our freedoms come from across our national borders from a foreign enemy or power. Perhaps the most devastating assault on the freedoms guaranteed to all Americans has come from within our own borders. These assailants are bent on the destruction of far more than our property or national infrastructure.
It is the symbol of our national ideal they seek to destroy, the very emblem of our way of life.
It is for this reason that I join thousands of freedom-loving Americans in urging you as members of the 105th Congress to pass legislation to protect this living symbol of democracy from heinous acts of physical desecration.
Wisconsin residents were recently horrified by one such attack by an 18 year old Appleton man seeking to strike a blow to our national conscience.
Matthew Janssen, a self-proclaimed anarchist, stole a United States flag from a municipal golf course and proceeded to defecate on it. He later left a note proclaiming:
''The anarchist platoon has invaded Appleton and as long as you put (American) flags up, we're going to burn them.''
What is perhaps even more disheartening about this incident is the decision by Outagarnie Judge John Des Jardins to drop the flag desecration charge against Mr. Janssen after stating that Wisconsin's flag desecration statute was ''unconstitutional.''
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Judge Des Jardins said he was merely following the High Court's lead of striking down a well defined 1919 Wisconsin law under the guise of freedom of speech.
As you know, the Supreme Court has repeatedly stated that there is no category in the U.S. Constitution which provides for flag protection that would overcome First Amendment free speech objections.
Through these rulings, the Court has sent a clear message that the only recourse available to those seeking to protect the flag from desecration is ratification of a narrowly drawn amendment allowing federal and state governments to enact laws to protect the symbol of our national heritage.
Decisions such as these which allow the U.S. Flag to be set ablaze, trampled, spit or defecated upon are shocking to our national conscience. Indeed, many incidents involving this type of flag desecration occur in smaller communities and are never even reported!
It is important to note that over 76% of the American voting public believes that such acts should not fall under the umbrella of protected speech, but rather, can only be characterized as examples of violent, despicable and destructive conduct which are unacceptable to and inharmonious with a civilized society. Furthermore, 49 state legislatures, including Wisconsin, have passed resolutions memorializing Congress to pass a flag protection amendment and send it to the states for ratification.
I believe it is both wise and necessary for the United States Congress to pass a flag protection amendment during the 105th Session of Congress. The restoration of legal protection to the American flag is anything but a partisan issue.
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Unquestionably, this is an important issue which has diverse and broad-based grass-roots support from every state in the Union.
The United States flag deserves the highest degree of respect and dignity. In peace and in war, Americans have looked upon ''Old Glory'' with pride and rallied to fight for the principles embodied in its historical fabric.
I join my colleagues in urging you to heed the call of the American voting public and act decisively to ensure that the American Flag remains protected and continues to hold the high place we have afforded it in both our hearts and our history.
Thank you again for this opportunity to testify before this Congressional Committee on the need to protect our national symbol so that it may continue to wave proudly as the representation of the American ideal.
I would be happy to answer any questions the members of the committee may have at this time.
Mr. CANADY. You did much better than the Members of the U.S. House of Representatives, much better. [Laughter.]
Thank you. Thank you very much.
Mr. Pilon.
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STATEMENT OF ROGER PILON, FOUNDER AND DIRECTOR, CENTER FOR CONSTITUTIONAL STUDIES, CATO INSTITUTE
Mr. PILON. Yes, thank you very much, Mr. Chairman, and I want to thank Chairman Hyde and you for your kind invitations to speak before the subcommittee today on this important proposal to amend the Constitution to prevent flag desecration.
Let me add to your introductory remarks, Mr. Chairman, by noting that, like Mr. Korb on the panel before this panel, I, too, served in the Reagan administration for 8 years at the Office of Personnel Management, the State Department, and the Justice Department, notwithstanding which I come here to oppose this proposal because, like so many of the conservatives to whom Mr. Dorsen pointed, I think that it is not only fundamentally unwise, but fundamentally mistaken, and the reason, in a word, is because it fundamentally violates the principles on which this country rests, the principles for which the flag is a symbol.
Now because I find myself on the opposite side of this issue from so many on this subcommittee and so many with whom I normally join hands on other issues, I feel a special burden to show why it is I believe this amendment is both unwise and mistaken. Let me begin to discharge that burden by making it clear from the outset what should be beyond any doubt; namely, that I'm not here to defend those who would desecrate the flag of the United States. I daresay, in fact, that my contempt for such action is equal to that of any member of this subcommittee. The flag is not simply a symbol of America; it's a symbol, as I noted a moment ago, of the principles on which the Nation rests. Those who would desecrate the flag are thus guilty at bottom of desecrating our principles, which is why we find their acts so offensive and so reprehensible.
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Ironically, however, it is those very principles that protect such acts and restrain the rest of us in the process. In a word, therefore, I'm here not to defend flag desecration, but to defend the right to desecrate the flag, offensive as the exercise of that right may be to so many Americans. That position may strike some as contradictory; it is not. In fact, there is all the difference in the world between defending the right to desecrate the flag and defending flag desecration itself. It's the difference between a free and an unfree society.
This amendment, as it tries to shield us from offensive behavior, gives rise to even greater offense. By offending our very principles, it undermines its essential purpose, making us all less free in the process.
It's crucial to understand precisely why it was that the Framers wanted to protect political expression. To be sure, they thought such expression was essential to the workings of a free society. Democracy works, after all, only when people are free to participate in the processes through which they govern themselves and to express themselves about those processes and that government in whatever way they choose, provided they don't violate the rights of others in the process. But it was not a concern for good consequences alone that drove the Framers. More deeply, they were concerned about the simple matter of protecting rights, whatever the consequences of doing so.
The protection of our rights is tested, however, not when what we do or say is popular, but when it is unpopular. Stated most starkly, a free society is tested by the way it protects the rights of its least popular members. Sir Winston Churchill captured that point well when he stated in 1945 that, ''The United States is a land of free speech. Nowhere is speech freer, not even in England, where we sedulously cultivate it even in its most repulsive forms.'' In so observing, Churchill was merely echoing thoughts attributable to Voltaire, that he might disapprove of what you say, but would defend to death your right to say it, and the ironic question of Benjamin Franklin, ''Abuses of the freedom of speech ought to be repressed, but to whom are we to commit the power of doing it?''
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When so many for so long have understood the principles at issue today, how can this Congress so lightly abandon those principles? It is said by some that the flag is a special case, a unique symbol. That claim may be true, but it does not go to the principle of the matter. In a free society individuals have a right to express themselves in ways that give offense, even when an overwhelming majority may oppose that expression. Once we bar such expression, however, Franklin's question will immediately be upon us. What is more, we will soon find that the flag is not unique, that the Bible and much else will be next in line for special protection.
It is said also that the flag is special because men have fought and died for it. Let me suggest here, and join Congressman Ackerman in doing so in his earlier remarks, that men have fought and died not for the flag, but for the principles it represents. People give their lives for principles, not for symbols. When we dishonor those principles to protect their symbol, we dishonor the men who died to preserve them. That is not a business this Congress should be about. We owe it to those men, men who have made the ultimate sacrifice, to resist the pressures of the moment so that we may preserve the principles of the ages.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Pilon follows:]
PREPARED STATEMENT OF ROGER PILON, FOUNDER AND DIRECTOR, CENTER FOR CONSTITUTIONAL STUDIES, CATO INSTITUTE
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My name is Roger Pilon. I am a senior fellow at the Cato Institute and the director of Cato's Center for Constitutional Studies.
I want to begin by thanking Chairman Hyde of the Committee on the Judiciary for inviting me to testify before the subcommittee on ''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.''
I have had the pleasure of working with Chairman Hyde in the past on several issues and look forward to working with him in the future on many others. On the issue before the subcommittee today, however, I am afraid I must demur, taking a position opposite that of Chairman Hyde and many on this subcommittee. In fact, because this issue separates me from so many with whom I normally join hands, I sense a special burden to show why I believe this proposed amendment is unwise—indeed, is fundamentally mistaken.
Let me begin to discharge that burden by making clear from the outset what should be beyond any doubt, namely, that I am not here to defend those who would desecrate the flag of the United States. I dare say, in fact, that my contempt for such action is equal to that of any member of this subcommittee. For the flag is not simply the symbol of America; more deeply, it is the symbol of the principles on which this nation rests. Those who would desecrate the flag are thus guilty, at bottom, of desecrating our principles, which is why we find their acts so offensive. Ironically, however, it is those very principles that protect such acts—and restrain the rest of us in the process.
In a word, therefore, I am here not to defend flag desecration but to defend the right to desecrate the flag, offensive as the exercise of that right may be to so many Americans. That position may strike some as contradictory. It is not. In fact, there is all the difference in the world between defending the right to desecrate the flag and defending flag desecration itself. It is the difference between a free and an unfree society. This amendment, as it tries to shield us from offensive behavior, gives rise to even greater offense. By offending our very principles, it undermines its essential purpose, making us all less free.
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Let me plumb those issues a bit more deeply by noting, first, that flag desecration of a kind that this amendment would authorize Congress to prohibit is political expression and, second, that political expression is precisely what the Framers wanted most to protect when they drafted the First Amendment. In a pair of cases decided in 1989 and 1990—involving first a state, then a federal statute—the United States Supreme Court said as much, which is why those who want to prohibit people from engaging in such acts have resorted to a constitutional amendment—an amendment that would, for the first time in over 200 years, amend the First Amendment. That alone should give pause.
But it is not the First Amendment alone that protects the rights of political expression. Even before the Bill of Rights was ratified, two years after the Constitution itself was ratified, citizens were protected against overweening federal power by a simple yet profound expedient—the doctrine of enumerated powers. In a word, there was simply no power enumerated in the Constitution through which the federal government might abridge political expression. Arguing against the addition of a Bill of Rights in Federalist 84, Alexander Hamilton put the point well: ''Why declare that things shall not be done [by the federal government] which there is no power to do?'' This amendment would expand federal power in a way the Framers plainly contemplated—and rejected.
It is crucial, however, to understand precisely why the Framers wanted to protect political expression. To be sure, they thought such expression was essential to the workings of a free society: democracy works, after all, only when people are free to participate in the processes through which they govern themselves. But it was not a concern for good consequences alone that drove the Framers: more deeply, they were concerned about the simple matter of protecting rights, whatever the consequences of doing so. The protection of our rights is tested, however, not when what we do or say is popular but when it is unpopular. Stated most starkly, a free society is tested by the way it protects the rights of its least popular members.
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Sir Winston Churchill captured well that essential feature of our system when he observed in 1945 that ''the United States is a land of free speech. Nowhere is speech freer—not even [in England], where we sedulously cultivate it even in its most repulsive forms.'' In so observing, Churchill was merely echoing thoughts attributed to Voltaire, that he may disapprove of what you say but would defend to the death your right to say it, and the ironic question of Benjamin Franklin: ''Abuses of the freedom of speech ought to be repressed; but to whom are we to commit the power of doing it?''
When so many for so long have understood the principles at issue today, how can this Congress so lightly abandon those principles? It is said by some that the flag is a special case, a unique symbol. That claim may be true, but it does not go to the principle of the matter: in a free society, individuals have a right to express themselves, even in offensive ways. Once we bar such expression, however, Franklin's question will immediately be upon us. What is more, we will soon find that the flag is not unique, that the Bible and much else will next be in line for special protection.
It is said also that the flag is special because men have fought and died for it. Let me suggest in response that men have fought and died not for the flag but for the principles it represents. People give their lives for principles, not for symbols. When we dishonor those principles, to protect their symbol, we dishonor the men who died to preserve them. That is not a business this Congress should be about. We owe it to those men, men who have made the ultimate sacrifice, to resist the pressures of the moment so that we may preserve the principles of the ages.
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Mr. CANADY. Thank you very much.
Mr. Brady.
STATEMENT OF PATRICK BRADY, CHAIRMAN, CITIZENS FLAG ALLIANCE
Mr. BRADY. Mr. Chairman, I deeply appreciate the kindness of this committee in allowing me to testify here today.
I'm the chairman of the board of the Citizens Flag Alliance. We're a coalition of about 119 organizations representing some 20 million Americans from every aspect of our culture and every State in the Union. We are a nonpartisan group with one mission, and one mission only, and that is to return to the people the right to protect their flag. This was a right that we enjoyed for over 100 years, a right that had been defended by five previous Supreme Court decisions, a right which was taken away from us in 1989. During those 100 years, there is no evidence of the catastrophes that we have heard here today.
But we're not here for a piece of colored cloth; we're here because we share a concern with most Americans that our deepest problems are morally-based. A most significant and visible sign of our sinking morality is the legalized desecration of our flag. Because it is the single symbol of our values, of our hope for unity, and our respect for each other, it is a major domino in the devaluing of America.
And we are here because the greatest tragedy of flag mutilation is the disrespect it teaches our children, disrespect for the values it embodies and disrespect for those who have sacrificed for those values. Disrespect is at the genesis of hatred. It provokes a dissolution of our unity, a unity that has only one symbol, Old Glory. The real victims of flag burning are our children. They are for us the bottom line. The highest form of patriotism is service to our youth.
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We are supported in this mission, as you have heard, by 80 percent of the American people in 49 States who have petitioned the Congress on behalf of their flag.
We are guided by the common sense and the wisdom of the American people who say flag burning is not speech; it is conduct. It shocks us that the act of defecation on a flag in Wisconsin is protected speech. Such conduct would not be allowed on any street in America.
We thank George Washington, who taught us that the Constitution was an imperfect document made more perfect by the amendment process, and we respect the good judgment of the people, who take this responsibility very seriously. There have been over 10,000 attempts to amend the Constitution, and the people have allowed it to happen only 27 times. And in every case, the Constitution was improved just as Washington said it would be. The First Amendment is a perfect example.
We agree with those people who say our laws should reflect our values. Where in the Constitution does it say that, in order to be free, we must tolerate conduct which the majority of Americans see as evil? Toleration for evil will fill our society with evil. Even those opposed to a flag amendment profess to be offended by flag desecration. Why should we tolerate it?
We have another group here, and they come to us by way of Iwo Jima, Okinawa, the Chosen Reservoir, and Khe Sahn. They earned the Medal of Honor on the great battlefields of this century, and they are personal heroes of mine. They cover the full spectrum of the American experience—historically, in culture, in society, in education, in the arts, as well as in war. They are a group of citizens who not only defended our culture, but they helped design it as well. They have been deeply involved in America's past and they care deeply about America's future.
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I think it is significant that men such as these, who have given so much of body and soul for our freedom of speech—or, as the children said last night, they gave so much body parts to America—they have given so much for our freedom of speech, for all our freedoms really, for many of the freedoms throughout the world, that these men see no threat to any freedom in flag protection; they are here because they see a threat to our freedom in flag desecration.
There are great and gifted Americans on both sides of this issue and learned opinions, but there is only one fact: the American people want this because it is the right thing to do. Whatever concerns some may have about free speech, I pray that they will muster the courage to believe that just this once they may be wrong and the American public may be right. I hope they will have the compassion to defer to those great blood donors to our freedom, men and women such as we have here today, and others whose final earthly embrace was in the folds of Old Glory.
This issue is truly about free speech, the most precious speech of all, the right of the people to speak, be heard, and to be heeded. And that is all the flag amendment does. It lets the people debate and decide on their flag and what it means to them. And that's our plea to this Congress: let the democratic process work. Let the people decide.
Mr. Chairman, there was a quote earlier from a POW, I think, and we had a POW supposed to be with us here today, but he couldn't, but he sent a very short notice, and if there's time, any time, I'd like to read that to you. Can I do that?
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This is Bud Day. He says, ''No one loves liberty more than those who lose it, and lose it for a long time. I was shot down on August the 26th, 1967, captured, escaped, and was recaptured some two weeks later.'' He's the only one that ever escaped, but he was recaptured. ''I spent 38 months of my 67 months in solitary, where I had the time to sort out what is important and what is not. I started my daily regimen by first saying the Pledge of Allegiance to the Flag, then reciting the Lord's Prayer, and then praying for my family. The reason for doing it in that order was that I knew, above all other things, that my country would never desert me, and it was of utmost importance that I not desert my flag. She was my link to civilization.
''When we were moved into joint living with about 40 other people, I was the commander. I ordered my troops to face the east every morning to say the Pledge of Allegiance. This motivated one of my junior officers, Mike Christian, to craft a home-made flag made from scraps. He sewed it on the inside of his shirt, and at pledge time he would turn the shirt wrong side out, hang it on a line, and we would say that pledge and render a hand salute. It was the best time of every day.
''At one of the shakedown inspections, the commies found the flag. They brutally dragged Mike out, and we could hear them beating him for hours. He came back that night with broken ribs and his face battered. They broke his ribs, but not his spirit. A few days passed, and Mike approached me. He says, 'Major, they got the flag, but they didn't get the needle I made it with. If you agree, I'm making another flag.' My answer was, 'Do it.'
''It was several weeks before we had another home-made flag, but he finished it. There was never a day from that day forward when the Stars and Stripes did not fly in my room with 40 American pilots proudly saluting.''
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What we guaranteed to 40 American prisoners should be the minimum guarantee for the entire United States. Thank you.
Mr. CANADY. Thank you, General Brady.
Mr. Jenkins.
Mr. JENKINS. Professor Dorsen, I have a license to practice law, and I've practiced a little law, and I've been a circuit judge in four counties in east Tennessee. I know a little bit about the legal niceties of which you spoke.
But, ultimately, does there not come a time in our society when we have to go beyond those, and do we not ultimately really believe in this country that a majority should prevail? Is that——
Mr. DORSEN. The answer to that, I regret to say, is not uniformly yes, because the whole point of the Bill of Rights is to protect minorities. If Congress voted unanimously not to allow Roman Catholics or Baptists or Jews or Asians to hold public office, even if 100 percent of the people in the country supported it, it would be unconstitutional, and that's true about all the constitutional amendments.
Judge, if I may call you that, I respect your legal acumen, but the fact is the whole point of a Bill of Rights is to protect minorities and especially despised and unpopular minorities. For those of us who aren't frequently in minorities that are despised, it's all the more imperative to say, there but for the grace of God go I. I respect the popular will, and, obviously, there will be votes, and if the supermajority that is needed to support this amendment occurs, I will patriotically support this country and the flag as much, I think, as anyone else.
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Mr. JENKINS. Well, in your mind, are you creating a new minority of those who would desecrate our flag?
Mr. DORSEN. They are not a minority in the same sense as Asians, but the First Amendment is designed to protect people who state views that everyone loathes. I have to say publicly that the proudest activity I ever engaged in when I was national president of the American Civil Liberties Union was defending the rights of so-called American nazis to march in Skokie, Illinois. I hated every single thing they stood for, but if we're going to allow socialists and Republicans and veterans and Roman Catholics to march peaceably, the ACLU view was that anyone could march peaceably. They were a minority in that sense. I got, if I may say so, more attacks on me for doing that than any other thing I've ever done, and yet I regard it as one of the proudest incidents of my career.
Mr. JENKINS. Well, I've defended some unpopular clients.
Mr. DORSEN. I'm sure you have, sir.
Mr. JENKINS. I know how that is. But let me leave the majority theory for a minute. Ultimately, in our society is not law crystallized public policy? I heard that from my law professors time and again. Is that not true?
Mr. DORSEN. I think that is true.
Mr. JENKINS. And is not—do we not see a clear crystal here in this country? You have admitted that 80 percent of the people want to see some means for this Congress to protect the flag from physical desecration.
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Mr. DORSEN. I didn't say that. What I said was that that's the figure that's been mentioned, and I have no personal knowledge to dispute it. But, as Dean Griswold said, who was one of my law teachers, as well in later life as a friend, ''Sometimes, with respect, one must see the principle and the statesmanship.'' That's why we're a Republic, why we don't have referenda in this country, we don't put votes to the people on propositions in the United States Government. We rely on people such as yourself, people of experience, of learning, of training, to say, ''Now one minute. The majority can be wrong. Let me take what Justice Stone said was the sober second look.''
I want to say this, in agreement with the people, if I may put it this way, that seem to be in the majority: the heavens will not fall if this amendment passes. But it is one step down the road to an erosion of one of the core principles of this country. And, obviously, everyone must search his conscience.
The Representative from Nebraska put it more dramatically than I would; namely, he didn't want his tombstone to say he voted to weaken the Constitution. I understand the tug of the flag. I served in the military myself. But one must step back and say, What is the right thing to do? And as you and as your colleague, Mr. Hutchinson, said before he left, honorable people are on both sides of this issue, and I certainly respect that deeply.
Mr. JENKINS. I'm just trying to understand why I agree so much with Professor Parker, and certainly General Brady, in their remarks, and I want to really have some understanding as to where your point of view is on this, but I just simply—I'm glad the heavens are not going to fall because I believe that this is going to pass. [Laughter.]
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And I'm certainly going to vote for it.
Mr. DORSEN. Well, I'm glad I said that then.
Mr. JENKINS. I'm glad we're able to have assurance that that great catastrophe will not befall us. Thank you, sir.
Mr. DORSEN. Thank you, sir.
Mr. CANADY. Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman.
In light of the history of flag burnings, does anyone disagree with the premise that the passage of this will actually increase the amount of flag burnings?
Mr. PARKER. Representative Scott, I don't think we have any way of knowing, do we?
Mr. SCOTT. Well, the last time we passed a flag burning statute, the day that the act was effective was the day people started burning flags.
Mr. PARKER. Well, sir, could I just give one example to expand my response—oh, I'm sorry.
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Mr. SCOTT. Let me follow up with a question. And is our country any better off if we have political dissidents in jail because of flag burning?
Mr. PARKER. I was going to say that my daughter sometimes tells me, when I'm defining a rule, that by setting the rule, I'll encourage her to break it; and therefore, there should be no rules in the family. My wife and I have not accepted her argument. [Laughter.]
Now you asked about imprisonment. I, again, would be inclined to be more trustful than some of my friends are in our judicial system and in the good sense of juries, as well as of prosecutors and judges, to ensure that the punishment would fit the crime.
Mr. SCOTT. Well, are you going to leave it up to the prosecutors not only to—and judges and juries—to define the punishment, but also who gets to be prosecuted? Is there any way to define when a flag burning is desecration and when a flag burning is respectful without being inherently content-based?
Mr. PARKER. It would depend, as so many free speech issues do, on a finding as to the intent of the individual involved. For example——
Mr. SCOTT. No, the intent is to burn the flag.
Mr. PARKER. The intent would have to be——
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Mr. SCOTT. And the content is what expression is being made. Is it burned respectfully? Do you say nice things as you burn the flag? Or disrespectfully? Do you say bad things as you burn the flag? So the action is the same action; the intent is to burn the flag. Is it not—is the decision to prosecute or not prosecute inherently content-based, and aren't the very ones that need constitutional protection the very ones that are going to be on the short end of that decision?
Mr. PARKER. My guess, sir, is that the prosecution would have to show something like what the congressional statute in force until 1989 required to be shown, and that is that the individual knowingly has cast contempt upon the flag. That was the language of the Federal statute and this is the same kind of finding that has to be made vis-a-vis knowingly false statements that damage the reputation of public officials. The Warren Court said that it's not just permissible, but desirable that such false statements be prohibited and that juries make findings as to the intent and state of knowledge of individuals being prosecuted.
Mr. SCOTT. So it is clearly content-based. Can you give us—I'm not as good at history as perhaps I should be with the Constitution. Could you tell us what happened to the—what the Alien and Sedition Act was all about and what happened to it?
Mr. PARKER. Perhaps my colleagues can pitch in here—Professor Dorsen is probably the real expert on this. The Alien and Sedition Act in effect was finally invalidated, at least in principle, by the decision that I'm invoking in support of the proposed flag amendment, the Times v. Sullivan decision.
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Mr. SCOTT. Can someone else—Professor Dorsen, do you want to give us——
Mr. DORSEN. The Adams administration passed a bill——
Mr. SCOTT. Your microphone is not on.
Mr. DORSEN. The John Adams administration passed a bill which prohibited freedom of speech, particularly by people who attacked the Government of the United States and by aliens. It was widely unpopular, but several people were convicted under it. I'm not certain whether people actually went to jail, but after Adams lost the next election to Thomas Jefferson in 1800, the law was allowed to lapse and it was not re-enacted. And as Professor Parker said, in 1964, in New York Times v. Sullivan, a majority of the Supreme Court said that the Alien and Sedition Act was undermined by the vote of history and that the people's right to free speech was ultimately protected.
Mr. SCOTT. Well, the idea that the content of contempt would have to be in the act of burning the flag to make it punishable, and we would leave it up to prosecutors, judges, and juries, and the majority, to find who has said something that is contemptuous and who has not. Is that accurate and is that——
Mr. PARKER. Just as is the case with respect to the prosecutions that are not just permitted, but encouraged, by Brennan's opinion in Times v. Sullivan and Garrison v. Louisiana. This happens all the time——
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Mr. SCOTT. Well, let me ask a procedural question. Where would these cases be brought? Would they have to be brought in Federal court?
Mr. PARKER. I would assume so.
Mr. SCOTT. The State would not have jurisdiction?
Mr. PARKER. The States would not be empowered under this proposed statute to pass any laws with respect——
Mr. SCOTT. So we're talking about bringing these cases in Federal court, and so the Federal prosecutors would have to decide who is contemptuous and needs to be imprisoned?
Mr. PARKER. Well, so the jury would decide.
Mr. SCOTT. The prosecutor brings the case; the judge and jury decide who is contemptuous——
Mr. PARKER. Unlike Dean Griswold, who has been mentioned many times, I have a great deal of faith in juries, as I do in democracy, and perhaps that really is what is at stake here.
Mr. SCOTT. Well, that's why we have the Constitution—to protect the unpopular from the tyranny of the majority in cases where, if the majority is just offended, that is not an imprisonable offense.
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Thank you, Mr. Chairman. I yield back the balance of my time.
Mr. CANADY. Thank you, Mr. Scott.
Mr. Barr.
Mr. BARR. Thank you, Mr. Chairman.
I'm always somewhat disappointed by the frequency with which in our debates in this panel, when we have specific legislative language that we're dealing with, people who oppose the concept or the intent or the meaning of the proposed legislation constantly say, oh, the language is too vague; there's no way of knowing exactly what it means.
The language that we have before us today—and I'd like to know if you agree with me, Professor Parker—I think is pretty clear, relatively speaking. As a matter of fact, I don't know how it could be more clear, more precise, less vague. It is not statutory language. In other words, the statute that Congress would, if Congress at whatever point in time after this amendment were to go into effect passes a law, would not use this precise language. They would draft language with a counsel to make sure that we took the best shot at drafting language that carries out the intent of this amendment and reflects our very best effort to review the case law and come up with language that will meet a court challenge. And certainly there will be a challenge, but, like you, I don't agree that that's a reason not to pass a law—simply because somebody's going to challenge it or because somebody may disobey it.
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But looking at the specific language here, is there anything you could suggest that would make it more clear or less vague?
Mr. PARKER. Well, sir, there's the language in the Flag Protection Act of 1989, which passed overwhelmingly in Congress, ''whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples.'' It's possible to take that route and describe various particular forms of physical desecration. To be constitutional, of course, it would have to count as physical ''desecration,'' and I agree with you, sir, that compared to other constitutional amendments, this proposed amendment is remarkably narrow, clear, and well-rooted in experience.
Mr. BARR. Thank you.
I've also, on a number of occasions, as I'm sure all of our panelists have, referred to specific provisions currently in our Constitution, including Article I, which states, among other things, that Congress shall make no law abridging the freedom of speech. Is it a fairly longstanding precept of constitutional law and interpretation and legislative history that specific words that are used in a document—in this case the Constitution—are to be interpreted in light of their meaning at the time they were placed in that document?
Mr. PARKER. That certainly is one very important source of meaning. One reason I do enjoy—and did 2 years ago—listening to Representative Ackerman's creative hypotheticals is that that's the kind of thing we do in law school classes, posing hypothetical possibilities. But the reason we do it in law school classes is not to say that meaning is impossible, that we can never figure anything out in life, that we can never understand one another. Just the opposite: the reason we come up with all these hypotheticals in law school classes is to try to work toward some understanding of a meaning that is communicable. Taking into account the intentions of the original Framers of language in the Constitution is an important guide.
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Mr. BARR. Is it your view, and the result of your many years of study and practicing with these issues, that the Framers of our Constitution used words with a fairly high degree of selectivity and purpose?
Mr. PARKER. They certainly did. I think anyone who's begun to study the history of the original Convention or the drafting of the Bill of Rights would agree with that proposition; absolutely.
Mr. BARR. Therefore, whatever it is that they meant by use of a term such as ''speech'' probably was something fairly specific and well-defined to them?
Mr. PARKER. I honestly don't know the answer to that specific question. But I would assume that they had a range of activities or expressive activities in their minds. It is the case, however, that after 200 years there has been an evolution in the meaning of speech that's taken place as part of the Supreme Court's jurisprudence.
Mr. BARR. Yes, we're all—well, I mean that really is one of the reasons that brings us to the point here certainly.
I would like to state for the record, as I'm sure certainly you're aware, that in his dissent in Street v. New York, former Justice, Chief Justice Earl Warren stated, ''I believe that the States and Federal Government do have the power to protect the flag from acts of desecration and disgrace. It is difficult for me to imagine that, had the Court faced this issue, it would have concluded otherwise.''
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And I think I suspect that what the former Chief Justice had in mind there, that there is, indeed, a difference which he certainly, I think, saw in the word ''speech'' in the First Amendment that distinguishes it from the physical act of desecrating the flag. And although we certainly can't go back now and ask our Founding Fathers, I truly believe that, even as much as they care about freedom and justice, I suspect that they probably would have said to Chief Justice Earl Warren, ''Yes, you are interpreting what we have done correctly.'' And I think we ought to today also.
Thank you.
Mr. CANADY. Mr. Conyers.
Mr. CONYERS. Thank you, and we welcome all the panelists.
You were here before, weren't you, Professor Parker?
Mr. PARKER. Actually, I wasn't. I testified in the Senate 2 years ago, but not in the House of Representatives.
Mr. CONYERS. OK. Constitutional law?
Mr. PARKER. Yes.
Mr. CONYERS. You're a professor——
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Mr. PARKER. And criminal law.
Mr. CONYERS. And criminal law?
Mr. PARKER. Yes.
Mr. CONYERS. OK. Now we're trying to work this out among reasonable lawyers and professors. So we agree that any proposed amendment would have to be targeted to content?
Mr. PARKER. I'm not sure I understand. Are you saying that——
Mr. CONYERS. For motivation for flag burning, for burning of the flag.
Mr. PARKER. Yes.
Mr. CONYERS. We're agreed to that? We're on the same wave length here?
Mr. PARKER. There are two issues here. First is——
Mr. CONYERS. But wait a minute. Are we in agreement?
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Mr. PARKER. You and I are in agreement on that proposition. However, others——
Mr. CONYERS. OK, that's all.
Mr. PARKER. Oh, OK, all right.
Mr. CONYERS. Stay calm. This is all I want to know right now—is, are we in agreement? The answer is yes. I got a lot more to do than—I don't want a lecture on this.
Mr. PARKER. I wasn't——
Mr. CONYERS. So we're in agreement. OK. Now with respect to protected categories of speech, is there any precedent for content-based restrictions?
Mr. PARKER. The answer is yes.
Mr. CONYERS. Would you care to elaborate?
Mr. PARKER. The most important example involving regulations of the content of political speech that have been held by the Court to be not only permissible, but desirable——
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Mr. CONYERS. Examples, please.
Mr. PARKER. Yes.
Mr. CONYERS. Name the case.
Mr. PARKER. New York Times v. Sullivan and Garrison v. Louisiana.
Mr. CONYERS. OK. Now that gets us a little further down the line. I've got to check the textbook you use in constitutional law, Professor. You named a libel case?
Mr. PARKER. Yes. If I may——
Mr. CONYERS. Well, OK—don't—no, I do not want an explanation now. I've got some lawyers that will check this.
Let me ask you this, Professor Parker, since you have been in on this for a while: are there some ways that you see that we might—that the proposed amendment might be rewritten to escape some of the vagueness attacks that are pretty obvious to almost everybody?
Mr. PARKER. Sir, I think it's as narrowly-written as can be right now.
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Mr. CONYERS. What's the answer to my question?
Mr. PARKER. Could it be more narrowly written? Or should it be? I'm sorry, perhaps I didn't know if you were asking ''could'' or ''should.''
Mr. CONYERS. OK. Well, let me try another question. Scratch it. Now listen carefully. You heard that there are vagueness problems about this proposal before us; right?
Mr. PARKER. I've heard people say that; I don't agree with it, but——
Mr. CONYERS. Yes, you don't see it. Well, I'm not quite sure how we want to do this. Let me ask you—let's forget law school and constitutional law, okay? Let's look at something else. How do you envision the proponents of this legislation getting more support for it this time than they did last time?
Mr. PARKER. In the House of Representatives?
Mr. CONYERS. No, in the Senate.
Mr. PARKER. In the Senate?
Mr. CONYERS. That's where you testified.
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Mr. PARKER. Yes. Of course, there's been some change in the membership of the Senate. I would hope, also, that there might be some shift in understanding of what I see to be the essential moderation of this proposed amendment. There may be some who felt it was radical or extreme the last time around who would see it differently this time.
Mr. CONYERS. OK. Well, look, keep hope alive. Jesse Jackson said that in many circumstances. Maybe some more people will come around to the position of the proponents and we'll get a constitutional amendment going—maybe.
But, you know, I don't think so. There are things underlying this proposal that I think the more people look at it, the more trouble it may create in the minds of not only people in the legislature, but in the country as well. And I don't think that, you know, what I'm hearing from you is going to help it very much. I mean, if I'm talking to a Harvard law professor who teaches constitutional law, and he doesn't see any vagueness, then I don't know how you're going to sell anybody on why this should be a better deal than it was 2 years ago.
Mr. PARKER. Could I respond?
Mr. CONYERS. Yes, sir.
Mr. PARKER. On one hand, of course, all language is vague.
Mr. CONYERS. Oh, OK.
Mr. PARKER. So, of course, if that's the way you're putting it, sir——
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Mr. CONYERS. Right.
Mr. PARKER [continuing]. There's vagueness.
Mr. CONYERS. Yes.
Mr. PARKER. There's not a problem of vagueness because, by comparison with other provisions in the Constitution, this proposed provision presents no problem of vagueness. The great——
Mr. CONYERS. Well, OK. All right.
Mr. PARKER [continuing]. Old provisions are far vaguer——
Mr. CONYERS. OK, all right. You know, I don't think that you——
Mr. CANADY. The gentleman's time has expired. Without objection, the gentleman will have 2 additional minutes.
Mr. CONYERS. Thank you, Mr. Chairman. I don't think I'll use them all.
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But I don't think the fact that you don't see vagueness and others do means necessarily that you're right. I've been listening to other law professors who happen to see vagueness. I don't have any—I try to make the laws in this country to the best of my intelligence and ability. I'd be very happy to support any restrictions on the contemptible act of flag burning if they didn't go into protected actions, protected speech, that the opening-up of which could have some very grave ramifications. And so you're here as a witness, and you're an excellent and able witness. Your testimony has been studied in this other body and now in this one, but I don't think you explaining to me that all language is vague is going to sell—is going to move anybody in my position off of it. And I don't believe you telling me that you don't see vagueness, when many others see it, is going to make a lot of difference. That's differences of views, of course, that bring us here in the first place.
Mr. PARKER. Just one response, sir?
Mr. CONYERS. Yes, sir.
Mr. PARKER. The Congress has the power, under Article I, Section 8, to regulate commerce among the several States. That is a vague phrase, I suppose.
Mr. CONYERS. Well, no, I don't—you may suppose it is, but it hasn't been found to be vague legally or constitutionally. It's vague to you, but then all language is vague to you.
Mr. PARKER. No, sir, I'm saying there's an issue of degree here. I'm saying that the Commerce Clause is far vaguer than the language of this provision, and yet I agree with you, sir, that that vagueness has not been understood for the most part as a problem. Moreover, Congress is the body which writes the statutes under the authority of constitutional provisions. If Congress is concerned about a problem of vagueness in the provision giving it power, it can write statutes that are far more specific, and it typically does, I think.
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Mr. CANADY. The gentleman's time has expired.
Mr. CONYERS. Thank you, Mr. Chairman.
Mr. CANADY. Well, I want to thank all of you for being here today.
But to follow up briefly—and I hope I don't take the whole 5 minutes—Professor Dorsen, do you think that the problem with this amendment is that the language is vague?
Mr. DORSEN. No, the way I would put it, the language inevitably has serious interpretative problems, and the question——
Mr. CANADY. Do you see the interpretative issues involved in this as being any different in substance from interpretative issues that would be involved in a variety of other constitutional provisions? In the Bill of Rights itself?
Mr. DORSEN. No.
Mr. CANADY. So the real problem with this is not that the language is vague. From the perspective of those who oppose it, the real problem is it's going to prevent activity which some people believe should receive the absolute protection of the law. And on this we have a disagreement. I think that's the core issue here, not whether the language is perfect or not.
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I think, as Professor Parker has pointed out, that this language is much tighter than many other constitutional provisions. I think that language will suit the purpose very well, and, of course, Congress will engage in its responsibility of enacting a law to apply this provision of the Constitution, acting under the authorization granted to the Congress in this provision.
But I think really all this talk about vagueness is a diversion from the real issue.
Mr. DORSEN. Can I just say one word?
Mr. CANADY. Yes.
Mr. DORSEN. The reason that there is a problem, unlike, say, with the Commerce Clause, which, as Professor Parker says, is also vague, is that when you enact something that touches on First Amendment rights and it's vague, it means that nobody knows in advance whether or not certain conduct is lawful or not—the people who are engaging in the conduct, the people who are prosecuting, and even the jury, until it finally decides. So what you're doing is dealing with a very sensitive area of constitutional law.
Mr. CANADY. Well, I understand that, but do you think that there's no ambiguity in the terms of the First Amendment itself?
Mr. DORSEN. There's plenty, and that's why, if I may say so, many statutes under the First Amendment have been declared void for vagueness. Now, as somebody——
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Mr. CANADY. I'm not talking about statutes. I'm talking about——
Mr. DORSEN. I was just about to say that you can't declare a constitutional provision void for vagueness, but that doesn't mean that the underlying problem of uncertainty—the word ''vagueness'' is getting to be a——
Mr. CANADY. But you're talking about this problem of uncertainty. Wouldn't that affect the First Amendment that we have?
Mr. SCOTT. Mr. Chairman, could I make a——
Mr. CANADY. Sure, I'll be happy to yield to Mr. Scott.
Mr. SCOTT. Mr. Chairman, I don't think—the vagueness is not the constitutional amendment. All the constitutional amendments are vague. Where I think the vagueness comes in is it is inherently impossible to write a statute under the constitutional amendment that is not vague on the question of what is desecration, what is a flag, and giving fair notice to those who want to avoid breaking the law; what is legal and what is not legal. So it's underlying the vagueness, inherent vagueness, in any underlying statute under this that we're talking about, not the constitutional amendment, which, as you have noticed, all the amendments are in fact vague.
Mr. CANADY. Well, reclaiming my time, I understand that point, although that's not the point that has been made earlier. I mean, the point of attack has been on the language of the amendment specifically.
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One final point that I think it's important to emphasize and that has been made here, and that is that nothing in this amendment or in the legislation that will be adopted subsequently will prevent anyone from expressing any idea they wish to express. No one will be prevented from expressing contempt for the country, from expressing contempt for the people in power, contempt for the Constitution, or contempt for whatever they wish to express contempt for. They will simply be prohibited from engaging in the physical desecration of the flag as a part of their efforts to express that idea.
Now I think flag desecration is a particularly inarticulate way of expressing an idea, because you really don't know what is being said, and it could be any range of things that they're trying to communicate, but that is a fundamental point here. I see this as really no more than something akin to a time, place, or manner restriction on activity which has an expressive element in it. I understand that people are attempting to express something through this. I would not dispute that, and I understand that expressive conduct has protection, but it is subject to some limitations.
There are acts that people could engage in—we've heard an example of this defecation on the flag. Well, someone may just wish to defecate in public, as an effort to express contempt for the political order. Well, we don't allow that, that's not permitted. That crosses the boundary. It's a matter of public decency, and I see this as very much akin to that, and it is a recognition that there will be some boundaries.
And, with that, again, I will thank each of you for taking the time to be with us. Your comments have been very helpful, and thank you.
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The subcommittee is adjourned.
[Whereupon, at 1:04 p.m., the subcommittee adjourned.]
A P P E N D I X
Material Submitted for the Hearing
FLAG DESECRATION ACTS
March 21, 1994
Cleveland, OH: An American Flag was burned during a news conference in front of police headquarters. This incident was in response to the news that the U.S. Supreme Court let stand an Ohio Supreme Court ruling overturning the earlier conviction of a member of the Revolutionary Communist Party who burned a flag in protest against the Persian Gulf War.
September 7, 1994
Lincoln, NE: One death penalty opponent burned an American Flag outside of the penitentiary where Harold Lamont ''Walkin' Willie'' Otey was executed. A crowd of approximately 1,000 had gathered to express either support or opposition to the death penalty.
November 2, 1994
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San Marcos, CA: An American Flag was burned during a demonstration against Proposition 187. When another flag was doused with lighter fluid, a student snatched it away to prevent the desecration. He was beaten by protesters as a result of his actions.
January 10, 1995
Honolulu, HI: Two American Flags were burned by native Hawaiian protesters who maintained that the Kingdom of Hawaii is still sovereign. The activists said the purpose of their actions was to make a ''complete show of sovereignty.''
February 27, 1995
Twentynine Palms, CA: The charred remnants of an American Flag were discovered. The flag had flown over the Civic Center Professional Building near the city hall.
March 11, 1995
Pittsburgh, PA: Two high school students burned an American Flag to protest the fact that the government ''builds arms and bombs and kills lots of people.'' Both students indicated they had burned flags in the past as a form of protest.
April 1996
Berwyn, IL: A high school student burned an American Flag at his home and brought the remnants to school where he displayed them in his locker. The student purported to make a symbolic statement against slavery, Japanese internment during World War II and other forms of discrimination.
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June 8, 1995
Bloomington, IN: Twenty flags were taken from poles and burned at the Valhalla Memory Gardens cemetery. The flags had been donated by the families of veterans buried at the Cemetery, and were usually displayed between Memorial Day and Flag Day every year.
June 21, 1995
Hays, KS: The flag at city hall was taken down by an unknown individual and burned on the city hall steps with a Graham Greene novel.
July 9, 1995
Geneva, OH: The flag outside of an American Legion post was taken down and burned in front of a church a few blocks away. Several smaller flags were burned and torn at the site as well.
July 24, 1995
Hampton, NH: More than a dozen flags were stolen from public buildings in three seacoast towns. One flag was left at a police station with obscene messages about President Clinton and U.S. House Speaker Newt Gingrich.
September 16, 1995
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Moore, OK: A Moore teenager was arrested for raising his car hood at a convenience store, then retrieved a full-size U. S. Flag from inside the vehicle, and then used the flag to wipe oil from his cars dipstick. He will not be prosecuted.
March 8, 1996
Denver, CO: The American Flag was trampled by students in protest of racism towards Hispanics outside of Kennedy High School in Denver.
March—June 1996
Phoenix, AZ: ''Old Glory: The American Flag in Contemporary Art,'' an exhibit at the Phoenix Art Museum, featured the following art works: the American Flag stuffed in a toilet by Kate Millet; a headless crucifix with the American Flag in the background by Hans Burkhardt; an American Flag made out of human hair and skin by Andrew Krasnow; a man dressed in Ku Klux Klan garb holding a baby painted onto an American Flag by Ronnie Cutrone; an American Flag laid out on the floor in order for people to trample on it by Dread Scott, and an American Flag with a lighter on top with a description that reads, ''Now more fun than ever'' by Erika Rothenberg. The exhibit sparked national controversy, including a demonstration by thousands demanding the exhibit's removal.
April 20, 1996
Evanston, IL; The American Flag outside the home of 96-year old Richard Guess was burned by an unknown individual. Mr. Guess, a retired policeman, has flown a flag outside his home for the post 70 years.
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April 22, 1996
Dacono, CO: A twenty-foot by thirty-foot flag belonging to the city of Dacono was stolen in broad daylight from the town's 160-foot water tower. The flag is the largest municipal flag in Colorado.
May 25, 1996
Fitchburg, MA: Flags and white crosses placed by AMVETS Post 29 in Monument Park were destroyed during the night. The flags and crosses were among 116 that had been placed in the two days before the Memorial Day weekend to honor fallen comrades.
May 26, 1996
Orange, MA: Fourteen American Flags were burned under cover of night at Central Cemetery.
May 27, 1996
Wahpeton, ND: About 20 U.S. Flags were torn down from poles along main street in the late evening/early morning hours. The 3-by-6 foot flags are put up every year for Memorial Day by the city's Fire Department.
May 27, 1996
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Grand Forks, ND: Flags decorating veteran's graves were stolen from cemeteries in the city. Some were later found in a dumpster at a local school.
May 28, 1996
Greenville, OH: A half-dozen American Flags were either destroyed or stolen over Memorial Day weekend. The flags had been put up along Broadway in downtown Greenville by local American Legion and Veterans of Foreign Wars posts.
May—June 1996
Morrefield, WV: More than a dozen flags were cut up by vandals during Memorial Day weekend, and again on Flag Day, June 14.
June 1996
Worcester, MA: An unidentified individual dragged the American Flag on the ground from his bicycle as part of a gay pride parade.
June 5, 1996
Indianapolis, IN: Mmoja Ajabu, a former Black Panther militia leader. and two militia members set fire to an American Flag as the Olympic torch relay went through the city. The flag was burned in protest of the Indiana Parole Board's vote earlier in the day recommending that Gov. Bayh deny a reprieve to Tommie Smith, a death-row inmate convicted in the 1980 shooting death of an Indianapolis police officer.
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June 6, 1996
Jessup, PA: The flag which formerly covered the casket of a dead World War II hero was taken from a pole and burned at Holy Ghost Cemetery. The flag had been a gift of the family of the late PFC John Vervan to the Michael Steiner American Legion Post in Jessup. PFC Vervan had received the Bronze Star for valor at Saipan, Marianas Islands June 15-July 9, 1944.
June 11, 1996
Santa Cruz, CA: In a protest over his benefits, Raymond Peterson set fire to an American Flag at a Social Security office. Peterson, who had been seeking to have his Social Security checks mailed directly to him instead of a guardian, also chained shut the door of the office.
June 16, 1996
Birmingham, AL: An American Flag was burned by an audience member during a performance by the ''Kevorkian Skull Poets'' at the City Stages Festival.
June 28, 1996
La Paz, IN: Flags flown outside of the local American Legion Post were cut down and shredded by an unknown party.
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July 1, 1996
Chicago Heights, IL: A burning American Flag was discovered by police along with a burning cross in the park Forest area of Chicago Heights.
July 3, 1996
Coolbaugh Township, PA: Several American Flags were burned in a small cemetery in the Tobyhanna area during the night. The area has also suffered from recent Bible burnings and vandalism of religious objects.
July 4, 1996
Indianapolis, IN: Protesters burned an American Flag in front of a police stallion to protest the recent arrest of former Black Panther militia leader Mmoja Ajabu and the treatment of blacks in the United States. As police, the public and news reporters looked on, the group's unidentified spokesman said the flag would be burned ''to preserve the ideals that this country was founded on.''
July 4, 1996
Galesburg, IL: Two men in their mid-twenties burned an American Flag in the middle of a street in the early evening. The men claimed they were burning the flag as their way of showing patriotism on Independence Day.
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July 7, 1996
Holland, MI: Five flags were stolen from downtown Holland during the course of the Independence Day holiday weekend. Two of the flags were ripped away, leaving shreds of the flag still hanging from the poles. The other three flags were stolen along with their poles.
July 8, 1996
Troy, MI: A flag thief has struck several times in suburban Detroit neighborhoods—his latest round included eight flags stolen from four locations. Flags have also been stolen and desecrated in Sterling Heights, Shelby Township and Auburn Hills, and police believe it is the work of the same individual who has identified himself in writings left behind as the ''Motor City Magic Man.'' Some of the flags have been recovered with a Black ''X'' written across them.
July 14, 1996
Fajordo, Puerto Rico: Onlookers cheered as an American Flag was burned at an Independence Day Rally for Puerto Rico. The rally drew tens of thousands of demonstrators, according to newspaper accounts.
July 19, 1996
Atlanta, GA: A group of young people burned an American Flag on the steps of the Georgia Capitol. although press reports were not clear as to what the group was protesting. A banner with the group read: ''Food Not Bombs.''
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August 3. 1996
Oak Lawn, IL: An American Flag was removed from the front of a home on West Shore Drive and set on fire on top of a car there, destroying the flag and damaging the car.
August 14, 1996
Bunker Hill, MA: Unknown persons tore down the American Flag, breaking the upper pulley at the Bunker Hill American Legion Post, threw the flag down on the ground in the parking lot, and then spun their wheels, throwing rocks over the flag.
August 27, 1996
Chicago, IL: A flag was burned as part of a large protest a block away from the Democratic National Convention. The protest of the ''Not on the Guest List Coalition'' drew about 1,000 participants and snarled traffic near the United Center.
September 6–7, 1996
St. Maries, ID: Unknown individuals burned U.S. Flags flying outside of homes on successive nights. One home nearly caught fire as a result of the incident while the family slept inside.
September 20, 1996
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Appleton, WI: Local youths have admitted stealing, burning and defecating on American flags in a series of more than 20 incidents in the Appleton area. One flag had been left with a note: ''The Anarchist Platoon has invaded Appleton, and as long as you put flags up, were (sic) going to burn them.'' Press accounts report that the youths attribute their attitudes toward the flag to ''listening to punk music.''
September 23, 1996
Leras, Puerto Rico: Demonstrators set a U.S. Flag on fire during the Grito de Lares celebration to mark the anniversary of a failed 1868 revolt against Spain and to affirm their desire for independence from the United States.
October 7, 1996
Fort Smith, AR: A flag bearing a swastika and the word ''abortion'' was displayed hanging upside down outside a house here. The home's owner said he had displayed the upside-down flag as a statement to the Congress after failing to overturn President Clinton's veto of a bill that would have outlawed partial-birth abortions.
January 1997
Lansing, MI: As evidenced by WILX–TV, Channel lo, the NBC affiliate in Lansing, in the rotunda of the State Capitol, a young Michigan man wiped his rear end with the American Flag at the Governor's State of the State Address. The event was taped as the crowd chanted, 'What do we want? Revolution. When do we want it? Now!'' Police stood by and watched—the courts say it's ''free speech.''
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March 19, 1997
Greensboro, NC: A 17-year-old high school student was charged with desecration of a flag, along with drug and drug paraphernalia possession, injury to personal property and having a weapon on school grounds. The weapon charge relates to the knife officials said he used to shred the American Flag utilized by the school band. The school official thought it was ''just vandalism.'' The teen was released from the Guilford County Detention Center on a $300 bond that same day.
March 28, 1997
Indianapolis, IN: During the college basketball Final Four playoff opening ceremony at the Pan Arn Plaza, Mmoja Ajabu, the former Black Panther leader began talking into a megaphone about ''the system'' being so unfair. Reporters and news photographers witnessed Ajabu cutting up an American Flag with a pair of scissors. An onlooker who was having none of it approached Ajabu and wrestled the flag from him. The police closed in and kicked Ajabu out of the plaza. The flag disappeared along with its new owner.
April 1, 1997
Buffalo, NY: Hours after winning a lacrosse playoff-clinching game the previous Saturday night, the starting goalie and another man climbed over a fence at the Buffalo and Erie County Naval & Military Park, grabbed the U.S. flag, threw it to the ground and snapped the flagpole in two. Both men were charged with criminal trespassing and criminal mischief, which are misdemeanors. The goalie is a Canadian citizen who plays for the Buffalo Bandits on a visa. It is not known whether the arrest would jeopardize the visa.
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49–083 CC
1997
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
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
APRIL 30, 1997
Serial No. 50
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Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
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CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
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ED BRYANT, Tennessee
WILLIAM L. JENKINS, Tennessee
BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
ROBERT C. SCOTT, Virginia
MAXINE WATERS, California
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
MELVIN L. WATT, North Carolina
KATHRYN HAZEEM LEHMAN, Chief Counsel
KERI D. HARRISON, Counsel
JOHN H. LADD, Counsel
ROBERT J. CORRY, Counsel
C O N T E N T S
HEARING DATE
April 30, 1997
OPENING STATEMENT
Canady, Hon. Charles T., a Representative in Congress from the State of Florida, and chairman, Subcommittee on the Constitution
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WITNESSES
Ackerman, Hon. Gary, a Representative in Congress From the State of New York
Brady, Patrick, Chairman, Citizens Flag Alliance
Dorsen, Norman, Stokes Professor of Law, New York University School of Law
Frost, Hon. Martin, a Representative in Congress From the State of Texas
Korb, Lawrence J., Director, Center for Public Policy Education, Brookings Institution
Lance, Alan G., Attorney General, State of Idaho
Lipinski, Hon. William O., a Representative in Congress From the State of Illinois
Parker, Richard D., Professor of Law, Harvard University
Pilon, Roger, Founder and Director, Center for Constitutional Studies, CATO Institute
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Seely, Maribeth, Teacher, Sandstone Walpack School, Layton, New Jersey
Shields, Carole, President, People for the American Way
Shimkus, Hon. John M., a Representative in Congress From the State of Illinois
Skaggs, Hon. David E., a Representative in Congress From the State of Colorado
Solomon, Hon. Gerald B.H. Solomon, a Representative in Congress From the State of New York
Sweeney, Francis J., Financial Secretary, Steamfitters Local Union 449, Pittsburgh, PA
Van Kirk, Carol, Nebraska American Legion Auxiliary
Zukowski, Robert K., State Representative, Wisconsin State Legislature
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Dorsen, Norman, Stokes Professor of Law, New York University School of Law: Prepared statement
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Frost, Hon. Martin, a Representative in Congress From the State of Texas: Prepared statement
Korb, Lawrence J., Director, Center for Public Policy Education, Brookings Institution: Prepared statement
Lance, Alan G., Attorney General, State of Idaho: Prepared statement
Lipinski, Hon. William O., a Representative in Congress From the State of Illinois: Prepared statement
Parker, Richard D., Professor of Law, Harvard University: Prepared statement
Pilon, Roger, Founder and Director, Center for Constitutional Studies, CATO Institute: Prepared statement
Seely, Maribeth, Teacher, Sandstone Walpack School, Layton, New Jersey: Prepared statement
Shields, Carole, President, People for the American Way: Prepared statement
Shimkus, Hon. John M., a Representative in Congress From the State of Illinois: Prepared statement
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Skaggs, Hon. David E., a Representative in Congress From the State of Colorado: Prepared statement
Solomon, Hon. Gerald B.H. Solomon, a Representative in Congress From the State of New York: Prepared statement
Sweeney, Francis J., Financial Secretary, Steamfitters Local Union 449, Pittsburgh, PA: Prepared statement
Van Kirk, Carol, Nebraska American Legion Auxiliary: Prepared statement
Zukowski, Robert K., State Representative, Wisconsin State Legislature: Prepared statement
APPENDIX
Material submitted for the hearing
(Footnote 1 return)
Attached and incorporated herein is a copy of Ms. Shields' curriculum vitae. People For the American Way has not received any federal grants, contracts, or subcontracts in the current or preceding two years.
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New York Times v. Sullivan, 367 U.S. 254 (1964).
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Garrison v. Louisiana 379 U.S. 64, 75 (1946).
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Testimony of Charles Fried before the Committee on the Judiciary of the United States Senate, June 21, 1990.
(Footnote 5 return)
The instances of physical desecration of the flag in the last few months in Michigan and Wisconsin suggest, however, that the perception of fairly may be a function of a consistent lack of media coverage of such behavior.
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I agree, for instance, that the Freedom of Speech protects expressive conduct and that its protection should not depend on how ''reasoned'' or ''articulate'' the expression is thought to be.
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Singling out the flag as sui generis in an amendment—rather than through interpretation of the First Amendment itself—best ensures that it will remain sui generis. See Frank Michelman, ''Saving Old Glory; On Constitutional leonography,'' 42 Stanford Law Review 1337 (1990).
(Footnote 8 return)
It's entirely possible that the specific statutes declared unconstitutional under the First Amendment in Johnson and Eichman would not pass master under the proposed amendment—because both may be worded too broadly. The Texas statute in Johnson made it a crime to ''damage'' a flag in a way known to ''seriously offend one or more persons likely to observe or discover'' it. Thus it swept beyond ''desecration'' defined by a more general standard. The United States statute in Eichman was more sharply focussed. But, before the Supreme Court, the government interpreted it as extending to any and all violations of the ''physical integrity'' of the flag, again seeming to sweep beyond behavior that might count as ''desecration.''
(Footnote 9 return)
Constitution of the Commonwealth of Massachusetts, Part I, Article 15.
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Some have suggested that they might support the amendment if it substituted words like ''burning'' or ''trampling on'' in place of ''desecration.'' they have suggested that ''desecration'' involves problems of interpretation that are too sensitive and too difficult. But their proposed substitutes would involve just the same problems. What instances of ''burning,'' for example, do they mean to forbid? Surely they don't mean to punish the prescribed ritual burning of a worn-out flag, which signifies respect. Surely they don't mean to prohibit utterly accidental burning. Hence, such substitutions would accomplish nothing except obstruscation.
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McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
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See Jans Mansbridge, Why We Lost the ERA (1986). One further observation is too tempting to resist. Many of those who made these arguments to oppose a flag amendment in 1990 and 1995 found themselves, in 1996, supporting amendments of their own (on campaign finance regulation or victims' right) that are far more complex and that would change the Constitution much more fundamentally. Perhaps they will therefore, forego such arguments this time around.