FLAG DESECRATION AMENDMENT; Congressional Record Vol. 152, No. 84
(Senate - June 26, 2006)

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[Pages S6471-S6487]
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                       FLAG DESECRATION AMENDMENT

  The ACTING PRESIDENT pro tempore. Under the previous order, the hour 
of 4 p.m. having arrived, the Senate will proceed to the immediate 
consideration of S.J. Res. 12, which the clerk will report.
  The legislative clerk read as follows:

       A joint resolution (S.J. Res. 12) proposing an amendment to 
     the Constitution of the United States authorizing Congress to 
     prohibit the physical desecration of the flag of the United 

  The Senate proceeded to consider the joint resolution which had been 
reported from the Committee on the Judiciary, with an amendment, as 
  [Omit the part struck through and insert the part printed in italic.]

                              S.J. Res. 12

       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled (two-thirds of 
     each House concurring therein), That the following article is 
     proposed as an amendment to the Constitution of the United 
     States, which shall be valid to all intents and purposes as 
     part of the Constitution when ratified by the legislatures of 
     three-fourths of the several States [within 7 years after the 
     date of its submission by the Congress] within seven years 
     after the date of its submission for ratification:

                              ``Article __

       ``The Congress shall have power to prohibit the physical 
     desecration of the flag of the United States.''.

  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, the Judiciary Committee, which I chair, 
has reported to the floor an amendment to the Constitution of the 
United States which would authorize legislation to prohibit burning of 
the American flag.
  The Supreme Court of the United States, in Texas v. Johnson in 1989 
and again in United States v. Eichman in 1990, in a 5-to-4 decision 
ruled that the first amendment to the U.S. Constitution relating to 
freedom of speech would be violated by legislation which prohibited 
flag burning.
  At the outset of the debate on this amendment, it is vital to note 
that the pending amendment does not seek to alter the language of the 
first amendment. The first amendment of the U.S. Constitution 
protecting speech, religion, press, and assembly is inviolate, really 
sacrosanct. But that is not to say the decisions of the Supreme Court 
of the United States have that same status.
  We have, since the adoption of the U.S. Constitution in 1787 and the 
Bill of Rights, the 10 amendments, in 1791, held freedom of speech as 
one of our highest values, along with freedom of religion, freedom of 
the press, the right to assemble, and the right to petition the 
Government. But decisions by the Supreme Court of the United States 
are, in a sense, transitory. They have the final word, and we respect 
their judgment, but our constitutional process allows for amendments in 
a complicated way. It has to pass both Houses of the Congress by two-
thirds vote and then be ratified by three-fourths of the States. So it 
is a high bar to change what the Supreme Court of the United States 
says the Constitution means.
  The five Justices who found the first amendment violated are Justice 
Brennan, Justice Marshall, Justice Blackmun, Justice Scalia, and 
Justice Kennedy. The four Justices in dissent were Chief Justice 
Rehnquist, Justice White, Justice O'Connor, and Justice Stevens. So had 
the Court been slightly differently constituted, we wouldn't be talking 
about a constitutional amendment.
  It is important to focus on the basic fact that the text of the first 
amendment, the text of the Constitution, the text of the Bill of 
Rights, is not involved. It is the decision by the Supreme Court, it is 
the decision where any one of five made a majority. It is that 
difference of opinion that is at issue, and it is important to note 
that when decisions are rendered by the Supreme Court of the United 
States, they are the ``opinion'' of the Court. There is no verity, 
there is no absolutism, unlike what might be contended for the 
Constitution itself, especially the first amendment.
  It is important to note that there have been many decisions by the 
Supreme Court of the United States which have limited freedom of speech 
under the first amendment. The first case which comes to mind is the 
famous opinion by Justice Oliver Wendell Holmes saying that an 
individual could not cry ``fire'' in a crowded theater. People have a 
right to speak, but there are limitations as to how people may exercise 
freedom of speech, and that is one limitation.
  A Supreme Court decision in Chaplinsky v. New Hampshire in 1942 had 
special significance when the Court decided that fighting words were 
not protected by the constitutional protection of freedom of speech. 
The defendant in a criminal case had used condemnatory curse words, a 
fight resulted, and he was convicted. The Court said freedom of speech 
did not go that far and upheld his conviction.
  The Court observed in that case a standard which is significant, and 
that is:

       It has been well observed that such utterances are no 
     essential part of any exposition of ideas, and are of such 
     slight social value as a step to truth that any benefit that 
     may be derived from them is clearly outweighed by the social 
     interest in order and morality.

  I believe that standard applies to flag burning.
  We have had other instances where the Supreme Court of the United 
States has limited freedom of speech. For example, on inciting unlawful 
conduct, you can say what you please, but you cannot incite others to 
unlawful conduct and then defend on the ground of freedom of speech.
  Obscenity cases are another line of decisions, complex decisions, 
conduct which is gauged by contemporary community standards and the 
question of whether the speech has its dominant appeal to prurient 
interests. It is pretty hard to define what that means. That was a 
definition I wrestled with consistently when I was assistant attorney 
of Philadelphia to make a determination as to where freedom of 
expression and freedom of speech crossed the line.
  On pornography, which is a lesser standard, you don't have to go to 
the level of obscenity on pornography if children are involved. There 
again, the first amendment protection for freedom of speech does not 
cover it.
  An individual in our society does not have the constitutional right 
to make false statements of fact, but that individual may be taken to a 
court of law, sued, and damages collected for slander, verbal false 
statements of fact, or libel, written false statements of fact.
  Similarly, the first amendment does not protect speech which 
constitutes threats of violence. And just last month in a widely noted 
case, the Supreme Court decided that governmental employees have limits 
on what their speech can contain.
  The Chaplinsky decision, which I cited a few moments ago, sets a 
standard which, as a generalization, notes that there will not be 
protection for utterances which are no essential part of any exposition 
of ideas and therefore are of slight social value.
  It is my opinion--and again, I denominate it as an opinion, just as 
the Supreme Court of the United States denominates its decisions as 
opinions. We all have our own opinions. We are all entitled to our own 
opinions. If there are enough opinions to the contrary of the five 
Supreme Court Justices--that is, the opinions of two-thirds of the 
Senate and two-thirds of the House of Representatives and three-fourths 
of the legislatures of the States--then we may make a modification of 
what the Supreme Court has said in declaring that flag burning is 
protected by freedom of speech.
  It is my sense that under the Supreme Court decision in Chaplinsky, 
we are dealing with conduct which is not an essential part of an 
exposition of ideas and does not have social value as a step to the 
truth, and that whatever is derived from it is clearly outweighed by 
the social interest in order and tranquility. It is my view that flag 
burning is a form of expression which is spiteful or vengeful or 
designed to antagonize, designed to hurt. It is not designed to 
  Again referring to the opinion of perhaps America's greatest Jurist, 

[[Page S6472]]

Wendell Holmes, on the Supreme Court in the case Abrams v. United 
States, decided in 1919, Justice Holmes noted that time has upset many 
fighting faiths. Time has upset many fighting faiths, and ideas and 
concepts and doctrines which men and women think are veritable truths 
may turn out not to be so. That opinion which I studied in law school a 
few years ago made the deepest impression on me of any which I have 
ever read. I think that is really the hallmark of freedom of speech, 
and that is in the context of seeking to persuade the marketplace of 
ideas. When Holmes said that time has upset many fighting faiths, he 
was extraordinarily prescient in that declaration.
  In evaluating the speech issue and in evaluating what I believe is an 
appropriate resolution of the pending constitutional amendment, I think 
of the veterans in our society and I think of the veterans' expectation 
of the sanctity of the flag. I think of the flag as a symbol of what 
veterans fought for, what they sustained wounds for, what they 
sustained loss of limbs for, and what they sustained loss of life for.
  In being the chairman of the Senate Veterans' Affairs Committee for 
some 6 years and a ranking member a number of years beyond, I had more 
duties than most would on veterans' issues. The veterans, with some 
substantial justification, repeatedly made the point at our hearings 
that they were not treated right for the sacrifices they had made; that 
when it came to compensation and disability, the Nation which has 
called upon them to fight wars and sustain wounds and sustain loss of 
limbs, comrades who have given their lives, the Nation was not very 
appreciative or grateful or didn't reciprocate with the kinds of 
benefits to which the veterans thought and think they are entitled to. 
It is a continuing battle, given the budget limitations.
  The Congress of the United States is very much concerned about 
veterans' rights and veterans' benefits, and we make an effort, but in 
so many cases, it has been my judgment, reflected in my views and my 
votes and my chairmanship of the Veterans' Affairs Committee, that we 
are not sufficiently considerate, and not a matter of being generous 
but not sufficiently just with our veterans.
  When it comes to the issue of flag burning, I have heard many 
veterans express deep concern about disrespect for the American flag, 
which they equate as disrespect for them, disrespect for the sacrifices 
they and their buddies have made.
  I think of my brother's service in the U.S. Navy, and I think of 
Morton Specter, who served in the U.S. Navy in World War II. I think of 
the service of my brother-in-law, Arthur Morganstern, who served in the 
South Pacific for 31 months and came home to find a 2-year-old baby 
daughter from whom he had been separated for a protracted period of 
time, and fortunately came home in time.

  My own service stateside during the Korean war was something I was 
proud to do. I did not face the rigors of combat, although when you are 
in the service, you respond to what the service tells you to do.
  I also think of the service of my father, Harry Specter, an 
immigrant. It always makes me mindful of immigrants who have built this 
country. My mother, too, was an immigrant. She came at the age of 6 
with her family from the Ukraine. I have had some comments about their 
contributions to this country in another context as we have talked 
about immigration reform, which is now pending before the conference 
committee of the House and Senate. My father came to this country at 
the age of 18, in 1911. The czar wanted to send him to Russia, and he 
wanted to go to Kansas.
  As I say sometimes in jest, it was a close call, but he got to go to 
Kansas. But he didn't know that when he sailed steerage from Europe to 
the United States, he had a round-trip ticket to France--not to Paris 
and the dancing girls, but to the Argonne Forest. It took exactly 30 
days for the U.S. Army to induct Harry Specter in Fairbrook, NE, and 
ship him overseas. He didn't have a whole lot of training, but he was 
``cannon fodder,'' as they expressed. These Doughboys were meant for 
the enemy German cannons. They all had a bull's eye painted on their 
back. He went to war, and he was wounded in action. He was struck by 
shrapnel, and he carried shrapnel in his legs until the day he died.
  When my father was in need of medical care, when he had a serious 
accident where a spindle bolt broke on a pickup truck when my sister 
was driving and rolled over and broke his arm, he was taken to the 
veterans hospital in Wichita, KS, where we lived. I was 7 at the time 
and would ride a bicycle out many miles from the residential section of 
town to where the veterans hospital was located. Now it is all built 
up. I had some exposure to the veterans there, and I have had exposure 
to veterans as I have traveled around Pennsylvania and on a trip I made 
in 1991 around the country to look at veterans' hospitals when I was on 
the Veterans' Affairs Committee to see if we had adequate care for the 
veterans who might come back injured from the gulf war. Fortunately, we 
did not have many casualties from the Gulf War in 1991.
  I visited the veterans at Walter Reed, as so many of us have, to try 
to give them a morale uplift and to tell them how much we appreciate 
their service. It is very difficult for those who go to visit them, 
with their artificial limbs and their loss of arms and their metallic 
legs. It is obviously disquieting to see them and realize how 
difficult, how tragic it is for them. Their spirits, by and large, are 
remarkable. But I think of our veteran population when I think about 
this amendment. I don't want to dwell on it overly, but I do not think 
it is an irrelevancy when we consider this flag protection amendment 
and consider what the expectations are.
  During the Memorial Day recess I had occasion to travel to Europe to 
visit veterans' cemeteries with the Veterans' Affairs Committee. 
Senator Craig, the chairman of the Veterans' Affairs Committee now, led 
a delegation with the distinguished Senator from North Carolina, Mr. 
Burr, who is presiding at the moment, and Senator Johnny Isakson from 
Georgia. I was along, and it was an enormously moving experience to see 
the rows of white crosses and the rows of Stars of David. We went to 
the cemeteries in the Netherlands. We went to the cemeteries in 
northern France not too far from the Argonne Forest where my father had 
fought. We went to the cemetery in Normandy and saw those steep cliffs 
and marveled at how our troops, on June 6, 1944, could scale those 
cliffs to lead to the invasion of Europe and free the world of the 
despotism of Nazi Germany and Hitler's annihilation of 6 million Jews 
and the treachery of Mussolini and the treachery of the war in the 
Pacific with the Japanese.
  I made a report to the Senate--as I do on my foreign travel--a week 
ago today. I noted in that report that when my father, Harry Specter, 
was hit by shrapnel in the legs, the possibility--as I saw in viewing 
the World War I cemeteries--noted that in World War I, there were 
126,000 deaths; in World War II, 407,300 deaths; and, of course, Harry 
Specter was not in one of the cemeteries. But had the shrapnel hit him 
a little higher, Harry Specter might have been in one of those 
cemeteries and he wouldn't have been my father and I wouldn't have 
been. Of all the sobering thoughts, none can compare to that one.
  I have voted on the constitutional amendment in the past when, years 
ago, I voted in favor of the constitutional amendment to protect the 
flag, so these thoughts are not new to me or a change of heart. But it 
is my view that given the expectation of so many Americans, especially 
American veterans, and given the fact that the text of the first 
amendment is in no way altered by this amendment, but it is only a 
decision by the Supreme Court of the United States, the opinion of five 
that freedom of speech precludes flag burning, and the opinion of four 
Justices that freedom of speech should not preclude flag burning, it is 
my opinion that the opinions of the five Justices ought not to 
dominate, and the opinions of the four Justices ought to dominate, 
provided that their opinion is the opinion of two-thirds of this body, 
two-thirds of the House, and the opinion of three-quarters of the State 
legislatures, which provides the constitutional basis for a 
constitutional amendment.
  I ask unanimous consent that the full text of my printed statement be 
printed in the Record.

[[Page S6473]]

  There being no objection, the statement was ordered to be printed in 
the Record, as follows:

                          2006 flag amendment

       Mr. President, I seek recognition today to support Senate 
     Joint Resolution 12, which proposes a constitutional 
     amendment allowing Congress to prohibit the physical 
     desecration of the American flag. I will vote in support of 
     this resolution. I do not take this step lightly. Just three 
     weeks ago, I voted against a proposed constitutional 
     amendment to define marriage as the union of one man and one 
     woman. I did so not because I do not support traditional 
     marriage, but because I believe that we have not reached the 
     point in time where the extraordinary measure of a 
     constitutional amendment has become necessary. The states 
     have shown that they are willing and able to preserve 
     traditional marriage, and the Supreme Court has not stepped 
     in to take that power away from them.
       With regard to the protection of our most cherished 
     national symbol, though, we have unfortunately reached the 
     point where we cannot protect our flag by any means short of 
     a constitutional amendment. In 1989, the Supreme Court's 5-4 
     decision in Texas v. Johnson stripped from the people the 
     ability--through their elected representatives--to make laws 
     to protect our flag. Prior to the Texas v. Johnson decision, 
     48 states had laws on the books prohibiting flag desecration. 
     There was also a 1968 federal law in place to prohibit 
     desecration of the flag. The 1968 law made it a crime to 
     ``knowingly cast contempt upon any flag of the United States 
     by publicly mutilating, defacing, defiling, burning, or 
     trampling upon it.'' (Pub. L. 90-381.)
       These state and federal laws existed because it appeared to 
     be beyond question that we could act to protect the American 
     flag. In addition to the law prohibiting flag desecration, 
     Congress had prescribed detailed rules for the flag's design, 
     the times and occasions for its display, and particular 
     protocols for conduct during the raising, lowering, and 
     passing of the flag. In 1907 in Halter v. Nebraska, the 
     Supreme Court upheld the constitutionality of a Nebraska 
     statute that prohibited the use of the flag for advertising 
       In later years, the Court continued to recognize the right 
     of the people to protect our flag. In Spence v. Washington, 
     the Court struck down a student's conviction for taping a 
     peace symbol to a flag. But in striking down the conviction, 
     the Court was careful to note that the defendant ``did not 
     permanently disfigure the flag or destroy it.'' In the same 
     year, in Smith v. Goguen, the Court held that a Massachusetts 
     flag misuse statute was impermissibly vague, but explained 
     that ``nothing prevents a legislature from defining with 
     substantial certainty what constitutes forbidden treatment of 
     United States flags.'' In his concurrence, Justice White went 
     even further, stating that ``[t]he flag is a national 
     property, and the Nation may regulate those who would make, 
     imitate, sell, possess, or use it. I would not question those 
     statutes which proscribe mutilation, defacement, or burning 
     of the flag or which otherwise protect its physical integrity 
     . . . .''
       In Street v. New York in 1969, the Court struck down a 
     protester's conviction for flag burning, but only because it 
     was unclear whether he was arrested for his conduct in 
     defacing the flag or for the statements he made as he did so. 
     Dissenting from the 5-4 majority opinion, Chief Justice Earl 
     Warren explained that ``the States and the Federal Government 
     do have the power to protect the flag from acts of 
     desecration and disgrace.'' Justice Hugo Black, the ardent 
     exponent of First Amendment absolutism, stated in his dissent 
     that, ``[i]t passes my belief that anything in the Federal 
     Constitution bars a State from making the deliberate burning 
     of the American flag an offense.''
       And Justice Abe Fortas articulated ``the reasons why the 
     States and the Federal Government have the power to protect 
     the flag from acts of desecration committed in public.'' He 
     explained that the flag is ``traditionally and universally 
     subject to special rules and regulation,'' and that ownership 
     of a flag is ``subject to special burdens and 
     responsibilities.'' Although ``[a] flag may be property, in a 
     sense,'' ``it is a property burdened with peculiar 
     obligations and restrictions'' and ``these special conditions 
     are not per se arbitrary or beyond governmental power under 
     our Constitution.''
       In light of these repeated statements of support for the 
     flag from the Supreme Court, it was a surprise when a bare, 
     five-justice majority of the Court in Texas v. Johnson struck 
     down Texas's flag protection act and invalidated the laws of 
     48 states and the federal government.
       Congress reacted swiftly to protect the flag by passing the 
     Flag Protection Act of 1999, which made it a crime to 
     knowingly mutilate, deface, physically defile, burn, keep on 
     the ground or floor, or trample upon the United States flag. 
     We tried to work within the confines of Texas v. Johnson to 
     ensure that the Flag Protection Act would not target 
     expressive conduct based on the content of its message. But 
     the very next year, in United States v. Eichman, five 
     justices of the Supreme Court the same five justices who 
     struck down the Texas statute in Texas v. Johnson, held that 
     Congress could not protect the flag through even a neutral 
     desecration statute.
       This amendment is an extremely narrow solution to correct 
     those two opinions in the only way the American people can. 
     For 198 years, from the ratification of the Bill of Rights in 
     1791 until the Texas v. Johnson decision in 1989, the states 
     and the Congress were free to protect the flag from 
     desecration and defilement. Can it be reasonably argued that, 
     for those 198 years, Americans lacked the freedom of speech 
     guaranteed by the First Amendment?
       I question whether defilement of the flag should even be 
     considered ``speech'' protected by the First Amendment. To 
     quote Chief Justice Rehnquist, dissenting in Texas v. 
       ``[F]lag burning is the equivalent of an inarticulate grunt 
     or roar that, it seems fair to say, is more likely to be 
     indulged in not to express any particular idea, but to 
     antagonize others. . . . The Texas statute deprived Johnson 
     of only one rather inarticulate form of protest--a form of 
     protest that was profoundly offensive to many--and left him 
     with a full panoply of other symbols and every conceivable 
     form of verbal expression to express his deep disapproval of 
     national policy.''
       Flag burning is the equivalent of ``fighting words,'' those 
     words ``which by their very utterance inflict injury or tend 
     to incite an immediate breach of the peace.'' Chaplinsky v. 
     New Hampshire. Fighting words are just one category of 
     expression that the First Amendment has never protected, for 
     the First Amendment has never been a blanket cover for every 
     conceivable form of expression. We have long recognized 
     numerous exceptions to the First Amendment's freedom of 
     expression, including: incitement to unlawful conduct; libel 
     and slander; obscenity; child pornography; and threats of 
     physical harm.
       In other instances, we have balanced an interest in 
     legitimate speech against overarching societal interests. For 
     example, Congress has passed copyright laws that limit a 
     speaker's ability to use the words of another person. The 
     Supreme Court has also held that government employees do not 
     have an absolute right to free speech for statements made in 
     the workplace.
       Just because conduct may have some expressive element, it 
     does not mean that it is entitled to First Amendment 
     protection. None of us would question the government's power 
     to prohibit vandalism of the Washington Monument, the Vietnam 
     Wall, or this beautiful Capitol building, even if the vandal 
     were expressing his outrage with government policies. Indeed, 
     Justice White stated in 1974 that ``[t]here would seem to be 
     little question about the power of Congress to forbid the 
     mutilation of the Lincoln Memorial. . . . The flag is itself 
     a monument, subject to similar protection.'' Just as we do 
     not allow criminals to deface the symbols of our Nation that 
     stand throughout this city, we should not allow vandalization 
     and desecration of our most precious and most recognizable 
     national symbol.
       We do not limit the expressive rights of those who wish to 
     voice dissatisfaction with our government by declaring flag 
     desecration off-limits any more than we do by prohibiting 
     desecration of our national buildings and monuments. The 
     avenues for expressing dissent are still wide open--``a full 
     panoply of other symbols and every conceivable form of verbal 
       All this amendment seeks to do is restore to Congress the 
     power it held for those 198 years before five justices took 
     it away in Texas v. Johnson: the power to protect our flag. 
     That's all. The amendment itself does not even prohibit flag 
     burning or other forms of flag desecration. The text of the 
     amendment is very simple: ``The Congress shall have power to 
     prohibit the physical desecration of the flag of the United 
     States.'' In other words, the amendment says, let's give the 
     people of the United States, through their elected 
     representatives, the right to offer protection to our most 
     cherished national symbol.
       There are those who claim that because our liberties are 
     enshrined in the Constitution, the flag is not properly 
     viewed as the symbol of our liberty. They claim that those of 
     us who support restoring to the people the ability to protect 
     the flag are not true defenders of the Constitution. Those 
     critics are wrong. One of the most important aspects of our 
     constitutional system is its recognition that we may, from 
     time to time, need to amend our founding document to reflect 
     the will of the people. Article 5 gives the people this most 
     important right. It takes a super-majority of Americans to do 
     so--two-thirds of the people's elected representatives here 
     in Congress and three-fourths of the states--so we can rest 
     assured that our Constitution is only amended when it is 
     absolutely necessary. But when the opinion of five unelected 
     judges overrides the voice of the people expressed through 48 
     state laws and a national flag protection law, how can we say 
     an amendment is not necessary?
       Chief Justice Rehnquist stated in Texas v. Johnson that: 
     ``The cry of `no taxation without representation' animated 
     those who revolted against the English Crown to found our 
     Nation--the idea that those who submitted to government 
     should have some say as to what kind of laws would be passed. 
     Surely one of the high purposes of a democratic society is to 
     legislate against conduct that is regarded as evil and 
     profoundly offensive to the majority of people whether it be 
     murder, embezzlement, pollution, or flag-burning.''
       Our Constitution lives by giving the American people a 
     means to raise their voices over the words of five justices 
     here in Washington. The American people have called on

[[Page S6474]]

     the members of this body to protect our most cherished 
     national symbol, and I agree with that sentiment.

  Mr. LEAHY. Mr. President, it is my understanding we are now on the 
constitutional amendment.
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mr. LEAHY. I thank the Chair.
  Mr. President, in 1791, the year that the Bill of Rights became part 
of our Constitution, the State of Vermont joined the Union, and then 
the State of Kentucky followed. Then Congress saw fit to change the 
design of the American flag to include 15 stars and 15 stripes, one for 
each State. In fact, it was this flag, the one recognizing the addition 
of Vermont and Kentucky to the United States, that flew over Fort 
McHenry in 1814 and that inspired Francis Scott Key to write the 
``Star-Spangled Banner.''
  Fifty years after that famous battle that inspired our National 
Anthem in Baltimore's harbor, President Abraham Lincoln visited that 
city as our country confronted its greatest test. It was a time in 
which this Nation faced grave peril from a civil war whose outcome 
could not yet be determined. Many flags flew over various parts of the 
United States, and our existence as a nation was in doubt. President 
Lincoln used the occasion to reflect on a basic feature of American 
democracy. President Lincoln observed:

       The world has never had a good definition of the word 
     liberty. The American people just now are much in need of 
     one. We all declare for liberty, but using the same word we 
     do not mean the same thing.

  I would hope that all of us in this Chamber champion liberty. If any 
of us were asked, we would say: Of course we do. But when I hear some 
talk about the desire to restrict our fundamental freedoms by cutting 
back on our first amendment rights for the first time in our history, 
you see why people wonder. The danger of this amendment is that it 
would strike at the values the flag represents and the rights that have 
made this Nation a vibrant democratic republic in which we have enjoyed 
freedom of religion, freedom of the press, freedom of expression, and 
freedom to think as individuals.
  Along with Vermonters, I find the American flag inspirational in all 
its incarnations, whether it is the current flag with 50 stars that was 
carried in formation at Parris Island when my youngest son Mark became 
a proud member of the U.S. Marine Corps; whether it is the American 
flag with 48 stars under which Vermonters joined in fighting World War 
II, including members of my family; the flag commemorating Vermont's 
becoming a State; the Bennington flag that commemorated our Declaration 
of Independence; or the revolutionary flag with 13 stars in a circle 
said to be designed by George Washington and sewn by Betsy Ross.
  Ultimately, the debate over this amendment turns on the scope we 
think proper to give to speech which deeply offends us. For two-thirds 
of the Senate to vote to amend the Bill of Rights to amend the U.S. 
Constitution because, as the Constitution requires, that we deem it 
``necessary'' in 2006, strikes me as extraordinary. The Senate oath of 
office, which the people of Vermont have authorized me to take six 
times, requires that we ``support and defend the Constitution.'' And I 
believe that doing so means opposing this effort to cut back on 
Vermonters' constitutional rights and freedoms.
  Regrettably, the Senate leadership is returning again and again to 
using constitutional amendments as election year rallying cries to 
excite the passion of voters. That is wrong. The Constitution is too 
important to be used for partisan political purposes--and so, in my 
view, is our American flag.
  With the rights of Americans being threatened in so many ways today 
by this administration, this is most especially not the time for the 
Senate to vote to limit Americans' fundamental rights or to strike at 
the heart of the First Amendment.
  The chairman has referred to Justice Oliver Wendell Holmes. It was 
Justice Holmes who wrote that the most imperative principle of our 
Constitution was it protects not just freedom for the thought and 
expression we agree with, but ``freedom for the thought that we hate.'' 
He also wrote that ``we should be eternally vigilant against attempts 
to check the expression of opinions that we loathe.''
  We all know that the First Amendment never requires people to defend 
it when it is upholding popular speech. It needs defense when the 
speech is unpopular.
  What is so distinctive about America is that our Government does not 
endorse religious or political orthodoxy. The price of our freedom of 
expression is our willingness to protect the expression of those with 
whom we disagree. America does not impose a state-designed dogma on its 
free people the way totalitarian regimes do. We value our freedom and 
we protect the freedom of others.
  Justice Robert Jackson made this point with unsurpassed eloquence in 
a Supreme Court decision made during World War II. He did this in West 
Virginia State Board of Education v. Barnette. His decision for the 
Supreme Court upheld our fundamental tradition of tolerance, holding 
that State school boards may not compel teachers and students to salute 
the flag.
  Remember, Justice Jackson was writing during World War II--during 
wartime. He wrote:

       [F]reedom to differ is not limited to things that do not 
     matter much. That would be a mere shadow of freedom. The test 
     of its substance is the right to differ as to things that 
     touch the heart of the existing order. If there is any fixed 
     star in our constitutional constellation, it is that no 
     official, high or petty, can prescribe what shall be orthodox 
     in politics, nationalism, religion or other matters of 
     opinion or force citizens to confess by word or act their 
     faith therein.

  That was a powerful statement by Justice Jackson, at a time when 
certainly the attention of this country was focused on a real war 
effort, the effort of World War II. But he knew what unifies our 
country is the voluntary sharing of ideals and commitments. Americans 
are free, free to offend but also free to respond to crude insults with 
responsible action--the way many of us remember and applaud--when that 
crowd at Dodger Stadium responded by spontaneously singing ``God Bless 
America'' when a couple of miscreants attempted to burn the American 
flag in the outfield 30 years ago, shortly after the end of the Vietnam 
  When I am home in Vermont, our family home, I fly the flag--not 
because the law tells me to but because, as an American, I want to. I 
fly the flag out of pride. I remember my parents, still alive, when 
they used to look with pride to see that flag flying and they knew 
their son was home from Washington. It is the same sense of pride I 
felt when I saw my son march in uniform under that flag, our flag, our 
American flag. It is the same sense of pride I feel when I see that 
flag flying over this Capitol Building when I come to work each day, 
and I stop and look at it sometimes when the Senate leaves at 2 or 3 
o'clock in the morning. I look at the dome and I see that flag 
illuminated and flying there.
  One of my colleagues, former Senator Bob Kerrey, a man of great 
bravery, who received the Congressional Medal of Honor for his bravery 
in battle, said in a recent opinion piece in the Washington Post, 
``Real patriotism cannot be coerced.'' It has to be a voluntary, 
unselfish, brave act to sacrifice for others.
  I ask unanimous consent that a copy of his op-ed be printed in the 
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the washingtonpost.com, June 15, 2006]

                        Our Flag and Our Freedom

                            (By Bob Kerrey)

       With campaigns at full tilt and the Fourth of July just 
     around the comer, the Senate's new priority is to debate and 
     vote on yet another resolution to amend our remarkable 
     Constitution. This time it's an amendment that would allow 
     Congress to prohibit a form of protest that a large majority 
     of Americans do not like: the burning or desecration of the 
     American flag. Since 1989, when the Supreme Court decided 
     unanimously and correctly that these rare, unpleasant 
     demonstrations are expressions of speech and therefore 
     protected by the First Amendment, there have been many such 
     attempts. Fortunately, all have failed.
       Unfortunately, enthusiasm for this amendment appears to 
     have grown even as flag-burning incidents have vanished as a 
     means of political protest. The last time I saw an image of 
     the U.S. flag being desecrated in this way was nearly 20 
     years ago, when the court issued its decision. Thus this 
     amendment--never appropriate in the oldest democracy on 
     earth--has become even less necessary. But necessity is not 
     always the mother of legislation.

[[Page S6475]]

       In defense of speech I do not like, I recall a ceremony I 
     have come to love: a military funeral. The finest of all is 
     conducted at Arlington National Cemetery. At graveside, an 
     honor guard holds the American flag while taps are played as 
     a final farewell. The guards then fold the flag into a 
     triangle and deliver it to the next of kin.
       It is as if the flag becomes the fallen. In the hands of a 
     widow or mother it is much more than a symbol of the nation. 
     At that moment the American flag is a sacred object that 
     holds the sweet memory of a life given to a higher cause. Or 
     so it seems to me each time I am witness to these hallowed 
       To others the ceremony may mean something entirely 
     different. I recall vividly one such situation: A mother of a 
     friend who was killed in Vietnam recoiled when the flag was 
     offered to her. She would not take it. In her heart the 
     American flag had become a symbol of dishonor, treachery and 
     betrayal. At the time, and perhaps to her dying day, she 
     wanted nothing to do with it.
       If our First Amendment is altered to permit laws to be 
     passed prohibiting flag desecration, would we like to see our 
     police powers used to arrest an angry mother who burns a 
     flag? Or a brother in arms whose disillusionment leads him to 
     defile this symbol of the nation? I hope the answer is no. I 
     hope we are strong enough to tolerate such rare and wrenching 
     moments. I hope our desire for calm and quiet does not make 
     it a crime for any to demonstrate in such a fashion. In 
     truth, if I know anything about the spirit of our 
     compatriots, some Americans might even choose to burn 
     their flag in protest of such a law.
       No doubt the sponsors and advocates of this amendment mean 
     well. They believe it is a reasonable and small sacrifice of 
     our freedoms. They believe no serious consequence will come 
     of this change.
       No doubt, too, some of the increasing interest in limiting 
     free speech is a response to the Sept. 11 attacks on the 
     United States. It was a remarkable moment, when the hearts of 
     most of us filled with a kind of pure patriotism we had never 
     felt before. It was a patriotism that bound liberty to 
     equality and fraternity. It was a patriotism that brought us 
     together, friend and stranger alike. We discovered heroes who 
     inspired us. No longer did we say, ``It's good to see you,'' 
     and not mean it.
       Most impressive to me was that the ``we'' included men and 
     women of many nations, every religion and every ethnic group. 
     The ``we'' was global. The patriotism we felt extended beyond 
     our boundaries and beyond the cramped spaces of ritual 
     nationalistic fervor. We understood that the vulnerability of 
     our freedom bound us together more than any symbol or slogan 
     can. Millions of Americans, then and now, proudly flew their 
     flags because they wanted to, not because any law told them 
       All the more reason, then, for patriotism to turn aside the 
     understandable impulse to protect our flag by degrading the 
     constitutional freedoms for which it stands. Real patriotism 
     cannot be coerced. Our freedom to speak was attacked--not our 
     flag. The former, not the latter, needs the protection of our 
     Constitution and our laws.

  Mr. LEAHY. The French philosopher Voltaire once remarked that liberty 
is a guest who plants both of his elbows on the table. I think what 
Voltaire meant by that is that liberty is sometimes even an unmannerly, 
vulgar guest, yet liberty requires we tolerate rudeness even when 
admittedly it is hard to do so. That is what allows us, in turn, the 
individual freedoms that we cherish for ourselves.
  Despicable, outrageous gestures like flag burning are hard to 
tolerate, but we do so because political expression is so central as to 
what makes America great and what protects the rights of each of us to 
speak, or to worship as we choose, and to petition our Government for 
redress. The flag is a symbol of the greatness that the American ideals 
of freedom and liberty have helped foster in this blessed land. The 
Constitution ultimately goes beyond symbols. The Constitution is the 
real bedrock of our rights.
  In a letter to me expressing his opposition to the constitutional 
amendment, my friend General Colin Powell said it very well. Let me 
quote Colin Powell in this regard. He said:

       We are rightfully outraged when anyone attacks or 
     desecrates our flag. Few Americans do such things and when 
     they do they are subject to the rightful condemnation of 
     their fellow citizens. They may be destroying a piece of 
     cloth, but they do no damage to our system of freedom which 
     tolerates such desecration. . . .
       I understand how strongly so many of my fellow veterans and 
     citizens feel about the flag. . . . I feel the same sense of 
     outrage. But I step back from amending the Constitution to 
     relieve that outrage. The First Amendment exists to insure 
     that freedom of speech and expression applies not just to 
     that with which we agree or disagree, but also that which we 
     find outrageous.
       I would not amend that great shield of democracy to hammer 
     a few miscreants. The flag will still be flying proudly, long 
     after they have slunk away.

  What powerful, powerful words from General Powell. I ask unanimous 
consent a copy of his letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                               Alexandria, VA,

                                                     May 18, 1999.
     Hon. Patrick Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy: Thank you for your recent letter asking 
     my views on the proposed flag protection amendment.
       I love our flag, our Constitution and our country with a 
     love that has no bounds. I defended all three for 35 years as 
     a soldier and was willing to give my life in their defense.
       Americans revere their flag as a symbol of the Nation. 
     Indeed, it is because of that reverence that the amendment is 
     under consideration. Few countries in the world would think 
     of amending their Constitution for the purpose of protecting 
     such a symbol.
       We are rightfully outraged when anyone attacks or 
     desecrates our flag. Few Americans do such things and when 
     they do they are subject to the rightful condemnation of 
     their fellow citizens. They may be destroying a piece of 
     cloth, but they do no damage to our system of freedom which 
     tolerates such desecration.
       If they are destroying a flag that belongs to someone else, 
     that's a prosecutable crime. If it is a flag they own, I 
     really don't want to amend the Constitution to prosecute 
     someone for foolishly desecrating their own property. We 
     should condemn them and pity them instead.
       I understand how strongly so many of my fellow veterans and 
     citizens feel about the flag and I understand the powerful 
     sentiment in state legislatures for such an amendment. I feel 
     the same sense of outrage. But I step back from amending the 
     Constitution to relieve that outrage. The First Amendment 
     exists to insure that freedom of speech and expression 
     applies not just to that with which we agree or disagree, but 
     also that which we find outrageous.
       I would not amend that great shield of democracy to hammer 
     a few miscreants. The flag will be flying proudly long after 
     they have slunk away.
       Finally, I shudder to think of the legal morass we will 
     create trying to implement the body of law that will emerge 
     from such an amendment.
       If I were a member of Congress, I would not vote for the 
     proposed amendment and would fully understand and respect the 
     views of those who would. For or against, we all love our 
     flag with equal devotion.
                                                  Colin L. Powell.
       P.S. The attached 1989 article by a Vietnam POW gave me 
     further inspiration for my position.

                 [From the Retired Officer, Sept. 1989]

     Thoughts of a Former POW: When They Burned the Flag Back Home

                          (By James H. Warner)

       In March of 1973, when we were released from a prisoner of 
     war camp in North Vietnam, we were flown to Clark AB in the 
     Philippines. As I stepped out of the aircraft I looked up and 
     saw the flag. I caught my breath, then, as tears filled my 
     eyes, I saluted it. I never loved my country more than at 
     that moment. Although I have received the Silver Star Medal 
     and two Purple Hearts, they were nothing compared with the 
     gratitude I felt then for having been allowed to serve the 
     cause of freedom.
       Because the mere sight of the flag meant so much to me when 
     I saw it for the first time after five and a half years, it 
     hurts me to see other Americans willfully desecrate it. But I 
     have been in a Communist prison where I looked into the pit 
     of hell. I cannot compromise on freedom. It hurts to see the 
     flag burned, but I part company with those who want to punish 
     the flag burners. Let me explain myself.
       Early in the imprisonment the Communists told us that we 
     did not have to stay there. If we would only admit we were 
     wrong, if we would only apologize, we could be released 
     early. If we did not, we would be punished. A handful 
     accepted, most did not. In our minds, early release under 
     those conditions would amount to a betrayal of our comrades, 
     of our country and of our flag.
       Because we would not say the words they wanted us to say, 
     they made our lives wretched. Most of use were tortured, and 
     some of my comrades died. I was tortured for most of the 
     summer of 1969. I developed beriberi from malnutrition. I had 
     long bouts of dysentery. I was infested with intestinal 
     parasites. I spent 13 months in solitary confinement. Was our 
     cause worth all of this? Yes, it was worth all this and more.
       Rose Wilder Lane, in her magnificent book The Discovery of 
     Freedom, said there are two fundamental truths that men must 
     know in order to be free. They must know that all men are 
     brothers, and they must know that all men are born free. Once 
     men accept these two ideas, they will never accept bondage. 
     The power of these ideas explains why it was illegal to teach 
     slaves to read.
       One can teach these ideas, even in a Communist prison camp. 
     Marxists believe that ideas are merely the product of 
     material conditions; change those material conditions, and 
     one will change the ideas they produce. They tried to ``re-
     educate'' us. If we could show them that we would not abandon 
     our beliefs in fundamental principles, then

[[Page S6476]]

     we could prove the falseness of their doctrine. We could 
     subvert them by teaching them about freedom through our 
     example. We could show them the power of ideas.
       I did not appreciate this power before I was a prisoner of 
     war. I remember one interrogation where I was shown a 
     photograph of some Americans protesting the war by burning a 
     flag. ``There,'' the officer said. ``People in your country 
     protest against your cause. That proves that you are 
       ``No,'' I said. ``That proves that I am right. In my 
     country we are not afraid of freedom, even if it means that 
     people disagree with us.'' The officer was on his feet in an 
     instant, his face purple with rage. He smashed his fist onto 
     the table and screamed at me to shut up. While he was ranting 
     I was astonished to see pain, compounded by fear, in his 
     eyes. I have never forgotten that look, nor have I forgotten 
     the satisfaction I felt at using his tool, the picture of the 
     burning flag, against him.
       Aneurin Bevan, former official of the British Labor Party, 
     was once asked by Nikita Khrushchev how the British 
     definition of democracy differed from the Soviet view. Bevan 
     responded, forcefully, that if Khrushchev really wanted to 
     know the difference, he should read the funeral oration of 
       In that speech, recorded in the Second Book of Thucydides' 
     History of the Peloponnesian War,'' Pericles contrasted 
     democratic Athens with totalitarian Sparta. Unlike the 
     Spartans, he said, the Athenians did not fear freedom. 
     Rather, they viewed freedom as the very source of their 
     strength. As it was for Athens, so it is for America--our 
     freedom is not to be feared, for our freedom is our strength.
       We don't need to amend the Constitution in order to punish 
     those who burn our flag. They burn the flag because they hate 
     America and they are afraid of freedom. What better way to 
     hurt them than with the subversive idea of freedom? Spread 
     freedom. The flag in Dallas was burned to protest the 
     nomination of Ronald Reagan, and he told us how to spread the 
     idea of freedom when he said that we should turn America into 
     a ``city shining on a hill, a light to all nations.'' Don't 
     be afraid of freedom--it is the best weapon we have.

  Mr. LEAHY. Another American who honorably served our country, Gary 
May, Chairman of Veterans Defending the Bill of Rights, wrote in a 

       This country is unique and special because the minority, 
     the unpopular, the dissident also have a voice. The freedom 
     of expression, even when it hurts the most, is the truest 
     test of our dedication to the principles that our flag 

  I ask unanimous consent a copy of his letter be printed in the 
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                Veterans Defending

                                           The Bill of Rights,

                                        Newburgh, IN, May 4, 2006.
     Re Oppose S.J. Res. 12, the Flag Desecration Constitutional 

       Dear Senator: My name is Gary May. I am writing to you 
     today as the chair of a group called Veterans Defending the 
     Bill of Rights to urge you to oppose S.J. Res. 12, the flag 
     desecration constitutional amendment. I know you hear from 
     some who say veterans support this amendment, but you should 
     also know that there are many veterans that have faithfully 
     served our nation who strongly believe that amending the 
     Constitution to ban flag desecration is the antithesis of 
     freedoms they fought to preserve.
       I lost both my legs in combat while serving in the U.S. 
     Marine Corps in Vietnam. I challenge anyone to find someone 
     who loves this country, its people and what it stands for 
     more than I do. It offends me when I see the flag burned or 
     treated disrespectfully. But, as offensive and painful as 
     this is, I still believe that dissenting voices need to be 
     heard, even if their methods cause offense.
       This country is unique and special because the minority, 
     the unpopular, the dissident also have a voice. The freedom 
     of expression, even when it hurts the most, is the truest 
     test of our dedication to the principles that our flag 
       In addition to my military combat experience, I have been 
     involved in veterans' affairs as a clinical social worker, 
     program manager, board member of numerous veterans 
     organizations, and advocated on their behalf since 1974. 
     Through all of my work in veterans' affairs, I have yet to 
     hear a veteran say that his or her service and sacrifice was 
     in pursuit of protecting the flag.
       When confronted with the horrific demands of combat, the 
     simple fact is that most of us fought to stay alive. The 
     pride and honor we feel is not in the flag per se. It's in 
     the principles for which it stands for and the people who 
     have defended them.
       I am grateful for the many heroes of our country. All the 
     sacrifices of those who served before us would be for naught, 
     if the Constitution were amended to cut back on our First 
     Amendment rights for the first time in the history of our 
     great nation. I write to you today to attest to the fact that 
     many veterans do not wish to exchange fought-for freedoms for 
     protecting a tangible object that represents these freedoms.
       To illustrate my point, here is what some of the Veterans 
     Defending the Bill of Rights have said about this amendment:
       ``During the fighting in Iraq, I saw friends of mine die in 
     battle. Each of us suffered and sacrificed to provide freedom 
     to the Iraqi people. With this in mind, I am profoundly 
     disturbed by the apparent willingness of Congress to 
     sacrifice our own freedoms here at home by amending the First 
     Amendment for the first time ever. When the coalition forces 
     entered Iraq, it was to topple a brutal and repressive 
     dictatorship, one that did not hesitate to jail and torture 
     its own citizens who protested against it. By amending the 
     Constitution to ban a form of expression, Congress dishonors 
     the legacy of servicemembers who fought and died in defense 
     of freedom.''--Jeremy Broussard, Bowie, MD, a combat veteran 
     of Operation Iraqi Freedom and a former Captain in the U.S. 
     Army whose artillery unit was among the first to enter Iraq.
       ``The proposed constitutional amendment is in my eyes, and 
     the eyes of countless other veterans, a slap in the face to 
     our service in combat. We volunteered to go to war to protect 
     the freedoms in this country, not watch them be taken away by 
     politicians who have never been to the front lines. I 
     consider myself an independent-minded conservative, and 
     believe that creating unnecessary amendments to the U.S. 
     Constitution is a betrayal of conservative principles.''--
     Specialist Eric G Eliason, Englewood, CO, a combat veteran 
     who served as an Infantryman in the Army for three years, 
     including one year overseas as part of Operation Iraqi 
       ``It is a bad thing to burn the flag, but it is a worse 
     thing to damage the Constitution.''--James Pryde, Tuskegee 
     Airman, combat veteran of the 477 Bomber Group in WWII.
       ``After devoting most of my career to working in military 
     intelligence, I was appointed Army Deputy Chief of Staff for 
     Intelligence in 1997. I served in that position until my 
     retirement in 2000. I am well acquainted with the many 
     threats facing the United States, and I must say that flag 
     burning does not begin to rise to a level of threat 
     justifying the attention of this distinguished body... I 
     served in the United States Army, like my father before me, 
     to defend fundamental American liberties. To begin the trend 
     of amending the First Amendment each time a particular form 
     of speech is found to be offensive sets a dangerous 
     precedent, and undermines the very freedoms for which I and 
     my fellow servicemembers served.''--Lt. General Claudia J. 
     Kennedy (USA, Ret.). Highest ranking woman to ever serve in 
     the U.S. Army.
       ``Like many of those who have served in the armed forces, I 
     am deeply concerned about this proposed attempt to undermine 
     free speech. While I do take offense at disrespect to the 
     flag, I nonetheless believe it my duty to defend the 
     constitutional right of protestors to use the flag in 
     nonviolent speech.''--Richard Olek, Fargo, ND, Army veteran 
     and past Commander of AMVETS Jon A. Greenley Memorial Post 7 
     in Fargo.
       ``Today the U.S. Senate is again debating an amendment to 
     the Constitution to ban desecration of the flag. It's an 
     issue on which I believe I can claim some authority. I laid 
     my life on the line and fought under the flag of the United 
     States during World War II. I watched some of my closest 
     friends fall during eight grueling campaigns, I was awarded a 
     Silver Star and Purple Heart. I'm a disabled veteran and long 
     standing Republican since 1940, and nothing angers me more 
     than the desecration of the U.S. flag. It is an 
     abomination to me and to other veterans. That said, 
     though, I believe the push to amend the Constitution to 
     criminalize flag burning is misguided. Our forefathers 
     would spin in their graves to think: that our government 
     would turn the established principle of free speech on its 
     end and consider persecuting people who disagree with its 
     actions.''--James Bird, Lumberton, NJ, is a decorated 
     veteran of World War II, where he survived eight campaigns 
     in combat and was a liberator of the Dachau concentration 
       ``. . . to undertake to carve out an area of free speech 
     and say that this or that is unpatriotic because it is 
     offensive is a movement that will unravel our liberties and 
     do grave damage to our nation's freedom. The ability to say 
     by speech or dramatic acts what we feel or think is to be 
     cherished not demeaned as unpatriotic ... I hope you will 
     hear my plea. Please do not tinker with the First 
     Amendment.''--Reverend Edgar Lockwood, Falmouth, 
     Massachusetts, served as a naval officer engaged in more than 
     ten combat campaigns in WWII.
       ``My military service was not about protecting the flag; it 
     was about protecting the freedoms behind it. The flag 
     amendment curtails free speech and expression in a way that 
     should frighten us all.''--Brady Bustany, West Hollywood, 
     California, served in the Air Force during the Gulf War.
       ``The first amendment to our constitution is the simplest 
     and clearest official guarantee of freedom ever made by a 
     sovereign people to itself. The so-called `flag protection 
     amendment' would be a bureaucratic hamstringing of a noble 
     act. Let us reject in the name of liberty for which so many 
     have sacrificed, the call to ban flag desecration. Let us, 
     rather, allow the first amendment, untrammeled and unfettered 
     by this proposed constitutional red tape, to continue be the 
     same guarantor of our liberty for the next two centuries (at 
     least) that is has been for the last two.''--State Delegate 
     John Doyle, Hampshire County, West Virginia served as an 
     infantry officer in Vietnam.
       ``As a twenty two year veteran, combat experience, shot up, 
     shot down, hospitalized

[[Page S6477]]

     more than a year, Purple Heart recipient, with all the proper 
     medals and badges I take very strong exception to anyone who 
     says that burning the flag isn't a way of expressing 
     yourself. In my mind this is clearly covered in Amendment I 
     to the Constitution--and should not be `abridged'.''--Mr. Bob 
     Cordes, Mason, Texas was an Air Force fighter pilot shot down 
     in Vietnam. He served for 22 years from 1956 to 1978.
       ``Service to our country, not flag waving, is the best way 
     to demonstrate patriotism.''--Mr. Jim Lubbock, St. Louis, 
     Missouri, served with the Army in the Phillipines during 
     WWII. His two sons fought in Vietnam, and members of his 
     family have volunteered for every United States conflict from 
     the American Revolution through Vietnam with the exception of 
     Korea. His direct ancestor, Stephen Hopkins, signed the 
     Declaration of Independence.
       ``The burning of our flag thoroughly disgusts me. But a law 
     banning the burning of the flag plays right into the hands of 
     the weirdoes who are doing the burning. . . . By banning the 
     burning of the flag, we are empowering them by giving 
     significance to their stupid act. Let them burn the flag and 
     let us ignore them. Then their act carries no 
     significance.''--Mr. William Ragsdale, Titusville, Florida, 
     an engineer who worked in the space industry for over 30 
     years, retired from the US Naval Reserve in 1984 with the 
     rank of Commander, having served in the Navy for over forty 
     years including active duty in both WWII and the Korean War. 
     He has two sons who served in Vietnam.
       ``I fought for freedom of expression not for a symbol. I 
     fought for freedom of Speech. I did not fight for the flag, 
     or motherhood, or apple pie. I fought so that my mortal enemy 
     could declare at the top of his lungs that everything I held 
     dear was utter drivel . . . I fought for unfettered 
     expression of ideas. Mine and everybody else's.''--Mr. John 
     Kelley, East Concord, Vermont, lost his leg to a Viet Cong 
     hand grenade while on Operation Sierra with the Fox Company 
     2nd Battalion 7th Marines in 1967.
       I hope you will join me and the Veterans Defending the Bill 
     of Rights in opposing S.J. Res. 12, the flag desecration 
     constitutional amendment. We must not allow this ``feel 
     good'' measure to restrict freedoms for which so many 
     veterans sacrificed so much. I look forward to working with 
                                                      Gary E. May.

  Mr. LEAHY. I have been to countries, as have many of us, countries 
with dictators--countries like China and Cuba, the former Soviet Union. 
They require a law to protect their flags and their symbols. I have 
taken great pleasure in those countries to point out that America does 
not need the kind of laws they do. America protects our symbols. The 
American people honor our national flag out of respect, not out of fear 
that they may break a law. I point out to them what real freedom is, 
and it includes the freedom to dissent and to differ, even in ways that 
I would find obnoxious and offensive.
  As the son of a printer, I was brought up to know how important the 
First Amendment is to maintaining our democracy. It allows us to 
practice any religion we want, or no religion if we want. It allows us 
to think as we choose and to express ourselves freely, even though 
others may disagree.
  We do not have a state-imposed orthodoxy in this great and good 
country. Instead, we have freedom and diversity--diversity in religion, 
diversity in thought, diversity in speech, diversity that is guaranteed 
and protected by our Constitution, our Bill of Rights, and particularly 
the First Amendment. When you guarantee and protect diversity, then you 
guarantee and protect democracy. When you guarantee and protect 
diversity, by definition you are going to have a democracy. No real 
democracy exists without diversity. But when you exclude and stamp out 
diversity and freedom of thought and expression, you act to stamp out 
  We have seen this in history. In the former Soviet Union or other 
totalitarian governments of history, when they wanted to destroy 
democracy they started, sometimes in little ways at first, but 
ultimately to stamp out diversity in dissent.
  American democracy has succeeded because we have fought to live with 
that unruly guest with his elbows on our table of which Voltaire spoke, 
and to tolerate speech and expressive conduct that probably virtually 
all of us here would find disrespectful and crude.
  We protect dissent, not because we oppose liberty but because we love 
  Wendell Phillips, a great New England abolitionist, wrote:

       The community which dares not to protect its humblest and 
     most hated member in the free utterance of his opinion, no 
     matter how false and hateful, is only a gang of slaves.

  Probably no person disagreed more vehemently with Wendell Phillips on 
the burning issues of their day than Senator John C. Calhoun of South 
Carolina. Yet Senator Calhoun came to much the same conclusion in a 
speech he gave on the Senate floor, our Senate floor, in 1848, more 
than 150 years ago. Senator Calhoun said:

       We have passed through so many difficulties and dangers 
     without the loss of liberty that we have begun to think that 
     we hold it by divine right from heaven itself. But it is 
     harder to preserve than it is to obtain liberty. After years 
     of prosperity the tenure by which it is held is too often 
     forgotten; and I fear, Senators, that such is the case with 

  This is what Senator Calhoun said 150 years ago.
  I am immensely proud to be given the privilege to be one of the two 
Senators who have the opportunity to represent the State of Vermont. 
Vermont has a proud tradition defending liberty and encouraging open 
debate. We are the State of the town meeting. If you want to experience 
open debate, I urge you to attend a Vermont town meeting. Everybody 
gets heard. Everybody gets heard about every disagreement, every 
differing view. A Vermont town meeting is as democratic as you can get. 
There is debate. There is expression. There is disagreement and 
agreement. There is freedom and democracy being lived.
  In fact, Vermont for many years engaged in such a great and open 
debate on this very issue of how best to approach protection of our 
flag. For years the Vermont General Assembly remained the only State 
legislature not to have passed a resolution in favor of a 
constitutional amendment. In January 2002 the Vermont Legislature 
passed a resolution, but it was written, interestingly, in a manner 
that shows Vermont's respect for the Constitution. It concludes that 
the Congress should take steps to ``ensure that proper respect and 
treatment . . . always be afforded to the flag,'' but in ways 
consistent with the principles that the flag represents, foremost among 
these being, ``the protection of individual freedoms enumerated in the 
First Amendment to the United States Constitution, including free 
  Our Legislature stopped short of taking the easy way out and simply 
parroting a politically popular demand to amend the Constitution. 
Rather, Vermont remained true to its proud tradition of encouraging 
open debate and called on Congress to ``explore all avenues available'' 
to protect the flag from desecration. Vermont's actions are consistent 
with our strong tradition of independence and commitment to the Bill of 
Rights. Indeed, Vermont's own Constitution is based on our commitment 
to freedom and our belief it is best protected by open debate.

  At one time, when we were afraid we might not have that chance for 
open debate, Vermont declared itself an independent republic. In fact, 
Vermont did not and would not become a State until 1791. That was the 
year the Bill of Rights was ratified. Following that tradition, this 
Vermonter is not going to vote to cut back on the First Amendment of 
the Bill of Rights for the first time since its adoption.
  Vermont sent Matthew Lyon to Congress. He, incidentally, cast the 
decisive vote, Vermont's vote, for the election of Thomas Jefferson. 
That election was thrown into the House of Representatives. Had Matthew 
Lyon voted otherwise, Thomas Jefferson would not have become President. 
Matthew Lyon was the same House Member who was a target of a shameful 
prosecution under the Sedition Act in 1789. Why? For comments he made 
in a private letter. And the power of the U.S. Government, under that 
horrible act, came down on Matthew Lyon. He was locked up for daring to 
be so critical in a letter.
  Vermonters showed what they thought of the Sedition Act and what they 
thought of trying to stifle free speech. While Matthew Lyon was in 
jail, Vermonters reelected him and sent him back to Congress. Along 
with our own lone Congressman, Congressman Sanders, I am working on 
that commitment to having a post office named for Matthew Lyon in 
  Vermont has stood up for the rights of free speech before and since. 
Vermont served the Nation during the dark days of McCarthyism. In one 
of the most remarkable and praise-worthy actions of any Senator from 

[[Page S6478]]

State, Vermont Senator Ralph Flanders stood up for democracy in 
opposition to the repressive tactics of Senator Joseph McCarthy. When 
so many others, both Republicans and Democrats, ran for cover, Senator 
Ralph Flanders of Vermont, a Republican, a conservative, a businessman, 
came to the Senate floor and said: Enough is enough. He asked for the 
censure of Senator McCarthy and allowed people once more in this 
country to speak freely.
  Vermont has a great tradition we cherish. It is one I intend to 
uphold. I honor the Vermont tradition that includes Senator Flanders 
when I oppose cutting back the First Amendment and the Bill of Rights.
  I know there is an impulse, a natural impulse, to restrict speech 
with which we disapprove. But America is strong because we do not fear 
freedom; we do not restrict freedom of speech. We should have 
confidence our institutions are stronger than a bunch of hooligans and 
that their ideas are better than those of cranks and crackpots.
  We know the vast majority of the people in this great country are 
patriotic, especially thinking of September 11 the way the American 
people have demonstrated patriotism, as rarely in our history. I can 
never remember a time in our history when I have seen more people fly 
more flags, and proudly.
  The crisis confronting America is not flag burning. Americans honor 
flags as a symbol of our country. Americans also know we face real 
challenges. The confidence of the American people and this Government 
and institutions is quite low. But even though confidence in the 
institutions of our Government may be low, Americans love their 
country. They respect the flag. It is the misuse of their Government 
for partisanship, the corruption of the Government and its processes, 
it is a lack of credibility and competence that they see in their 
Government that concerns Americans in the face of real threats and real 
  Mark Twain said: Honor your country, question your Government. That 
is what is happening today.
  I see respect for our flag in the actions and attitudes of the 
citizens of America. I see it in the dedication of Don Villemaire and 
his friends of Essex Junction, VT, who stood and proudly waved American 
flags every single night after the horrible tragedy of September 11, 
2001, until the search for remains officially ended. That was a vigil 
every single night in Essex Junction, VT--longer than 8 months. That is 
showing respect.
  I see in Montpelier, my birthplace, in their annual Independence Day 
parade, where flags are waved in support of our country and our 
soldiers. I see it in the memorial of American flags planted along the 
paths of funeral processions of Vermonters killed serving their country 
in Iraq and Afghanistan. Vermonters' respect for the flag is born from 
respect for this country and the values it protects. Our patriotism is 
felt, it is willful. It is not forced on us.
  Instead of telling the American people, the people beyond the 100 who 
have the privilege of serving here, what they can and cannot do, maybe 
we should talk about what we 100 do and how we do it. We honor America 
when we in the Senate do our jobs, when and if we work on the matters 
that can improve the lives of ordinary Americans. Let the 100 Members 
of the Senate work to raise the minimum wage, lower gas prices, provide 
better health care and health insurance for more Americans. Let the 100 
Senators act to fund the promise of stem cell research that could end 
the suffering of so many Americans.
  The proposed amendment to the Constitution would do harm to the First 
Amendment protections that bind us all against oppression, especially 
the oppression of momentary majority thought. The amendment violates 
the precept laid down more than 200 years ago that ``he that would make 
his own liberty secure must guard even his enemy from oppression.''
  It undercuts the principle that a free society is a society where it 
is safe to say and do the unpopular. Let us not give away our liberties 
in order to impose orthodoxy so others cannot offend.
  Let me be clear, I am deeply offended when anyone defiles the 
American flag. I expect one thing that unites all 100 Senators is that 
every one of us is deeply offended when the flag is defiled. Two years 
ago, a flag incident occurred in Vermont outside St. Augustine's Church 
in Montpelier. Someone wrapped a statue of the Virgin Mary in the 
American flag and set it on fire. This is a church in which I have been 
baptized. When this act was first reported, I called it an act intended 
to outrage, an attack on the religious community, and a gross show of 
disrespect for the flag. We also know acts like these can and should be 
prosecuted under Vermont's law, as I suspect they should be under all 
of the laws of any of the 50 States. Laws prohibit such damage to 

  If someone seeks to do harm to the flag I proudly fly in my home when 
I am there, they, too, would be prosecuted under Vermont law. In fact, 
having been a prosecutor in Vermont, knowing what I know of Vermont 
juries, they would be convicted, but I can replace a flag of mine that 
was destroyed, and would. I can buy another flag. But if we act to 
diminish the Bill of Rights that protect our rights and freedoms of a 
quarter billion Americans and of generations to come, we cannot replace 
that. We cannot go to the store and buy a new Bill of Rights once it is 
  Ours is a powerful Constitution, all the more inspiring because of 
what it allows and because we protect each other's liberty. Let us be 
good stewards. Let us preserve and protect for our children and our 
children's children a Constitution with the freedoms we were bequeathed 
by the founding patriots and by the sacrifice of generation after 
generation of Americans.
  I urge Senators to think about this vote. Do not diminish that pillar 
on which our democracy and our freedoms depend. Do not cut back on the 
First Amendment of our Bill of Rights for the first time in American 
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Utah.
  Mr. HATCH. Mr. President, I will respond, but first I ask unanimous 
consent to allow the distinguished Senator from Alabama to speak, and 
then allow me to go next.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  The Senator from Alabama.
  Mr. SHELBY. Mr. President, I rise today to express my strong support 
for the antiflag desecration resolution that is before the Senate this 
  Mr. President, 229 years ago this month, the Continental Congress 
adopted a resolution giving the United States a flag, the stars and 
stripes, the American flag that we know today. There is no greater 
symbol of our freedom and our liberty.
  The stars and stripes epitomize the underpinnings of the United 
States, that which was envisioned and created by the Founders of this 
great Nation, solidified by the Framers of the Constitution, and 
represented at that first Continental Congress.
  Old Glory was raised at Iwo Jima, was placed on the Moon, and drapes 
the coffin of every servicemember who has sacrificed his life for our 
Nation. Our flag is emblematic of liberty and democracy. It honors all 
those who have defended our Nation from enemies at home and abroad, and 
all those who carried it into battle and never returned.
  Yet there are some throughout this country who have chosen to express 
their views and opinions by defacing and even burning the flag. They 
believe the flag is simply a piece of fabric upon which stars and 
stripes have been sewn. They refuse to respect and revere the flag as a 
true monument to the freedoms and ideals of our great Nation. These 
notions were bolstered by a 1989 Supreme Court decision that protected 
the desecration of the flag.
  Throughout the history of our Nation, the flag has been protected by 
laws. In fact, before the Supreme Court decision in 1989, 48 States and 
the District of Columbia had laws regulating the physical misuse of the 
American flag. Even today, a majority of Americans continue to believe 
the flag should be protected, that the Court was basically wrong in 
their decision.
  It is that strong support and my firm belief that we must protect the 
flag that has sent me here today to advocate for this resolution. While 

[[Page S6479]]

have argued we should simply accept court interpretations of first 
amendment issues as final, irreversible truths, I disagree. Our system 
of government is based upon checks and balances and allows for 
legislative reactions to judicial decisions.
  While rarely invoked, amending the Constitution is a reasonable 
reaction to a controversial and clearly wrongheaded court decision. The 
American system of government provided for amendments, and there are 
some issues that deserve that attention. I believe protecting the flag 
is one.
  In debating this issue, we must look beyond burning the flag and 
protecting one's freedom of expression. This issue must be considered 
in a broader context. We must remember that this issue is about 
respecting the single unifying symbol of this great democracy, the 
American flag.
  Defacing the U.S. Capitol or the Washington Monument would never be 
considered legitimate acts of free speech. The flag should be entitled 
to the same considerations. The flag is a national treasure, a 
monument, even, and like other national treasures, it deserves to be 
protected and respected.
  Our flag is a unique national symbol that represents common values, 
shared aspirations, and the sacrifices of millions of Americans. The 
argument is not about legitimate free speech, in my judgment, but, 
rather, the extent to which free people must tolerate offensive acts. 
While some will say that a constitutional amendment to ban flag burning 
unduly inhibits free speech, I respectfully disagree.
  Let me be clear. It will not diminish the Bill of Rights, in my 
judgment, to allow Congress to define and enforce a law which protects 
the American flag much like other national treasures are protected. To 
desecrate the American flag, in my judgment, is to desecrate the memory 
of the hundreds of thousands of Americans who have sacrificed their 
lives to keep our flag flying. It is to destroy everything this country 
  There are some things that just need to be treated with respect and 
reverence for no other reason than to honor all those who have served 
and died for this country.
  When we look at our flag, I believe we should see more than a piece 
of fabric colored red, white, and blue. We should see our Nation and 
all that it symbolizes. Our Armed Forces put their lives on the line 
daily to defend what Old Glory represents. We have a duty and a 
responsibility to honor their sacrifices by giving the flag the 
constitutional protection it deserves.
  At this time, before I yield the floor, I thank Senator Hatch for all 
of his work in this regard and also for yielding me time.
  The PRESIDING OFFICER (Mr. Bennett). Under the previous order, the 
Senator from Utah is recognized.
  Mr. HATCH. Thank you, Mr. President.
  Mr. President, this amendment is a bipartisan amendment. It is 
overwhelmingly bipartisan. We have always gotten over 60 votes. The 
House of Representatives passes it overwhelmingly and gets the 
requisite two-thirds vote every time. It has always been stopped here 
in the Senate.
  Bringing it up at this time is certainly not an election-year ploy, 
as we have Democrats and Republicans who feel very deeply about this 
issue. It is bipartisan. The last time we brought it up was in the year 
2000. If I had my way, we would have brought it up every one of those 
intervening years so the American people could really realize what is 
involved here.
  So today we begin the debate on the flag protection amendment. This 
is an important debate. This is a constitutional amendment. It ought to 
be difficult to pass any constitutional amendment, and they truly make 
it difficult, requiring a two-thirds vote of both bodies. Assuming we 
get those votes and it passes both bodies, it has to be submitted to 
the States, and 38 States would have to ratify it, at least 38, in 
other words, three-quarters of the States.
  I thank my colleagues on both sides of the aisle for supporting this 
effort. I especially thank my colleague, the chairman of the Judiciary 
Committee, Senator Specter, for working so hard to see this amendment 
through the committee. I thank my dear friend from Alabama who just 
spoke because, in his own cogent, very clear spoken way, he has made it 
very clear this is not some inconsequential, inconsiderate, partisan 
thing that is going on here. I also thank the majority leader, Senator 
Frist, for bringing it to the floor.
  Like I say, this is an important debate. A lot depends on this 
debate. In fact, I would say it is a critical debate. Should this 
amendment pass, we will restore--that is a very important word--the 
power of the people over their own Constitution. We will make it clear 
that in America it is the people, not the judges, who are sovereign.
  This is a debate worth having. There has been a lot of 
misunderstanding about this amendment. I believe even the distinguished 
ranking member on the committee has misconstrued this amendment in his 
remarks here today. This is what the amendment says. It is simple. It 
has nothing to do with free speech. The amendment says:

       The Congress shall have power to prohibit the physical 
     desecration of the flag of the United States.

  Let's read that again. It does not ban anything. It says:

       The Congress shall have power to prohibit the physical 
     desecration of the flag of the United States.

  This body and the other body will have the power. The other body has 
already voted it out of that body by a two-thirds vote. Some say we are 
only one vote short of having 67 votes. Some want to make this a 
partisan debate. It is not. Some want to make it an election-year 
debate. It is not. This is a bipartisan debate over whether we are 
going to stand up and restore the Constitution to what it was before 
five unelected Justices on the U.S. Supreme Court--to four who totally 
disagreed with them--decided to change the Constitution. Those who 
argue that this is a change of the Bill of Rights have failed to 
recognize there are millions in this country--the vast majority--who 
differ with those five unelected Justices. And there were four with an 
opinion, written by arguably one of the most liberal Justices on the 
court, Justice Stevens, saying that desecrating the flag is not free 
speech but offensive conduct.

  But even if you want to make that argument, it does not belong here 
in the context of this debate because what we are arguing is whether we 
can restore the Constitution to what it was before five unelected 
jurists, Justices, on the Supreme Court changed it.

       The Congress shall have power to prohibit the physical 
     desecration of the flag of the United States.
  I have heard Senators on this floor criticize the administration and 
other administrations on both sides of the aisle saying that they have 
usurped the powers of the Congress of the United States. Yet some of 
them who are voting against this amendment turn around and fail to stop 
the usurpation of powers by the Supreme Court of the United States in a 
5 to 4 decision.
  Well, don't miss the point here.

       The Congress shall have power to prohibit the physical 
     desecration of the flag of the United States.

  That is what this amendment says. It is a simple statement of the 
power of the people and of their Representatives in Congress. So all 
the high-flown talk about the Bill of Rights and this is going to be 
the first time the Bill of Rights will be overturned--come on, the Bill 
of Rights was overturned when five unelected jurists changed it and 
changed the Constitution. Now we will get it back to the people.
  This amendment does not ban anything. It does not amend the first 
amendment. It does not prohibit speech. What it does is simple. It 
restores the power of the people's Representatives to protect the flag 
from acts of physical desecration. That is it. That is it. It is that 

       The Congress shall have power to prohibit the physical 
     desecration of the flag of the United States.

  In the United States, we have government by the people. The 
Declaration of Independence makes it clear that in this country--for 
that matter, in any just political community--the people are sovereign.
  Sometimes we need to be reminded of this powerful truth. This is how 
Thomas Jefferson explained what he called ``the common sense of the 

       We hold these Truths to be self-evident, that all Men are 
     created equal, that they are endowed by their Creator with 

[[Page S6480]]

     unalienable Rights, that among these are Life, Liberty, and 
     the Pursuit of Happiness--That to secure these Rights, 
     Governments are instituted among Men--

  Now, get this last part:

     deriving their just Powers from the Consent of the Governed.

  It is the first principle of the American founding, and it is one 
that the American people still hold true today. Government exists 
because of the people, and it only exists with their consent, meaning 
our consent.
  The Constitution affirmed this when it began with ``We the People.'' 
The people wrote the Constitution at the Convention. The people created 
the Congress and the courts. The people ratified the Constitution. They 
gave it life. And the people ratified the first amendment.
  Yet, for too long, some unelected judges have mistakenly concluded 
that it is the courts that have exclusive dominion over the 
Constitution. This is a chance for us to say to the Supreme Court: We 
are not going to let you intermeddle in the affairs of the people 
themselves with regard to the flag of the United States.
  For too long, some unelected judges have mistakenly concluded that it 
is the courts that have exclusive dominion over the Constitution.
  The Constitution began with ``We the People.'' The people wrote the 
Constitution at the Constitutional Convention. The people created the 
Congress and the courts. The people ratified the Constitution and gave 
it life. And the people ratified the first amendment.
  Yet the courts seem to say they are the only ones who have authority 
over the Constitution. This was certainly the case in 1989, when a 
severely divided Court reversed 200 years of American jurisprudence and 
overturned the considered judgment of the American people in almost 
every State.
  For generations, the American people provided protections for their 
beloved symbol, the flag.
  On June 20, 1989, 48 States and the District of Columbia had statutes 
that protected the flag from physical desecration.
  On June 21, 1989, all of those statutes suddenly became 
unconstitutional--all of the people's statutes, all of that work by all 
of these legislatures and the District of Columbia. All of them were 
ruled unconstitutional by five unelected Justices who were contested by 
four Justices on the Court.
  Now, how did this come to pass? One vote on the Supreme Court 
switched, one vote. That is it. One vote and the will of the people in 
virtually every State in the Union was overturned--in nearly every 
State. One vote, one person--five people.
  For many years, the Court well understood the obvious and compelling 
interest of political communities in protecting the American flag from 
desecration. In 1907, Justice Harlan wrote for the Supreme Court in 
Halter v. Nebraska. That decision reviewed a Nebraskan statute 
protecting the flag from physical misuse.
  This was Justice Harlan's--one of the all-time greatest Justices on 
the Supreme Court--conclusion:

       It is not remarkable that the American people, acting 
     through the legislative branch of the Government, early in 
     their history, prescribed a flag as symbolical of the 
     existence and sovereignty of the Nation . . . [L]ove both of 
     the common country and of the state will diminish in 
     proportion as respect for the flag is weakened. Therefore, a 
     state will be wanting in care for the well-being of its 
     people if it ignores the fact that they regard the flag as a 
     symbol of their country's power and prestige, and will be 
     impatient if any disrespect is shown towards it.

  In short, there was a clear interest in providing protection for the 
American flag, recognized by one of the greatest Justices in the 
history of the Supreme Court.
  Now, following this holding in the Court, the National Conference of 
Commissioners on Uniform State Laws approved the Uniform Flag Act in 
1917. Section 3 of that act provided that:

       No person shall publicly mutilate, deface, defile, trample 
     upon, or by any word or act cast contempt upon any such flag, 
     standard, color, ensign, or shield.

  Now, many States used this Federal statute as a model for their State 
statutes or to supplement existing statutes.
  There is no doubt that desecrating a flag is meant to express 
something. But as the late Chief Justice Rehnquist understood, that 
expression is more akin to an ``inarticulate grunt'' than a serious 
public statement when they desecrate the flag. The States concurred 
when they did their own balancing of the interests of the political 
community in protecting the flag with the interest of the individual in 
expressing himself.
  The Court agreed that not all expressive conduct could simply be 
labeled speech and given full first amendment protection. As the 
Supreme Court explained in United States v. O'Brien:

       [W]e cannot accept the view that an apparently limitless 
     variety of conduct can be labeled ``speech'' whenever the 
     person engaging in the conduct intends to express an idea.
  In instances where expressive conduct, not speech, is at issue, the 
Court must balance the interests of the community in prohibiting this 
conduct with the interests of the person who wishes to express himself 
or herself. With regard to flag burning, the Court's approach was 
measured. In Smith v. Goguen, the Court overturned a flag desecration 
conviction in Massachusetts, concluding that the statute which punished 
words and acts of desecration was void for vagrants. The Court added, 
however, that:

       nothing prevents a legislature from defining with 
     substantial specificity what constitutes forbidden treatment 
     of United States flags.

  This is the Supreme Court. The Court pointed to the Federal flag 
protection statute, one which prohibited only physical desecration 
rather than words, as an example of a constitutionally permissible 
statute. And so it was, until five unelected Jurists changed it--
actually, until one vote changed it, one vote combined with the four 
who had always voted against the flag.
  The Court and the people were in agreement. Not all expressive 
conduct can receive first amendment protection. The Government's 
interest in protecting the American flag from physical desecration was 
a real one. But be that as it may, we could argue right now about 
whether this is conduct or whether it is speech. The fact is, we are 
not talking about free speech. We are talking about restoring the 
Constitution to what it was before five unelected judges or Justices on 
the Supreme Court changed it. And it really came down to one changed 
vote on the Court because the Court had always upheld amendments that 
protected the flag from acts of physical desecration.
  The flag is a unique symbol of our nationhood that demands 
protection. The American people do not share a common religion or 
common political beliefs. We do not share a common ethnic heritage. But 
there are a few public symbols we do share as people. The American flag 
is a unique representation of our remarkable union. Its 13 stripes 
represent our origins as a nation, and its 50 stars, separate but 
unified on a field of blue, represent what we have become. From a small 
outpost of the Colonies fighting for freedom, we have become a beacon 
of liberty to the whole world.
  For years, interest in protecting this symbol was deemed strong and 
real enough to rebut serious constitutional challenges. What changed? 
Why do the American people no longer have the right to protect the flag 
from acts of physical desecration? Why can't the Congress do that? One 
vote switched and went with the other four, and all of these rights 
were gone. So to those who say this is a denigration of the first 
amendment, the first amendment was denigrated when five unelected 
Justices took the power away from the people.
  Prior to 1989, 48 States protected the flag, and the other two 
basically stood for protecting the flag, and the District of Columbia. 
I am not making this up. On June 20, 1989, nearly every State had laws 
protecting the flag from physical desecration. All those States rights, 
all the people's rights, were wiped out when one person changed his 
vote on the Supreme Court. One day later, after June 20, 1989, all of 
these State laws were unconstitutional. All that changed is the Supreme 
Court determined that it would disregard the beliefs of the American 
people and their representatives in Congress and in the States.
  When the Supreme Court had the opportunity to execute its balancing 
test in Texas v. Johnson, balancing the interests of the people and 
prohibiting certain conduct with the individual's

[[Page S6481]]

interest in expressing himself in a particular manner, the Justices put 
their finger on the scale. They rejected as insufficient the States' 
interests, all of these States and their interests, one supported by 
the people in protecting the flag. They did not do so through a 
unanimous opinion. The Justices were severely divided, issuing a 5-to-4 
decision. The dissent of Justice John Paul Stevens, arguably one of the 
most liberal Justices in history, was compelling. He dissented from 
that five-person majority case. He spoke for the opinion that the Court 
had arbitrarily abandoned. Here is what Justice Stevens said:

       The Court . . . is quite wrong in blandly asserting that 
     respondent ``was prosecuted for his expression of 
     dissatisfaction with the policies of this country, expression 
     situated at the core of our First Amendment values.'' 
     Respondent was prosecuted because of the method he chose to 
     express his dissatisfaction with those policies. Had he 
     chosen to spray-paint--or perhaps convey with a motion 
     picture projector--his message of dissatisfaction on the 
     facade of the Lincoln Memorial, there would be no question 
     about the power of the Government to prohibit his means of 
     expression. The prohibition would be supported by the 
     legitimate interest in preserving the quality of an important 
     national asset. Though the asset at stake in this case is 
     intangible, given its unique value, the same interest 
     supports a prohibition on the desecration of the American 

  That is Justice Stevens, who wrote the opinion for the Court and who 
many would arguably say may be the most liberal Justice on the Court. 
The American people agreed: the Court got this one wrong. They got it 
very wrong. So Congress acted immediately. We believed that Congress 
did have the power to protect the flag. For well over 100 years, the 
Court had upheld State and Federal protection measures.
  On July 18, 1989, two separate measures were introduced in the 
Senate. Former Senators Robert Dole, Alan Dixon, Strom Thurmond, and 
Howell Heflin introduced S.J. Res. 180, which would restore the power 
to protect the flag to the States and affirm the existing power of 
Congress to do so. On the same day, Senators Joseph Biden, William 
Roth, and William Cohen introduced the Flag Protection Act.
  While the amendment would have merely restored and confirmed the 
power of the people's representatives to protect the flag, as this 
resolution does, this statute which was filed by Senators Biden, Roth, 
and Cohen would have actually codified that legal protection.
  Ultimately, the Senate acted on the bill authored by my colleague 
from Delaware, Senator Biden. As chairman of the Judiciary Committee, 
he was committed to resolving this issue. He held four hearings with 20 
hours of testimony and 26 witnesses. I was there. After consulting with 
many experts, he was convinced that his bill would pass constitutional 
muster. It was a great bill, consistent with the desires of the 
American people. It provided extremely broad protection for our 
American flag. This is what became law. This is Senator Biden's 
language and others of us who supported it:

       [W]hoever knowingly mutilates, defaces, physically defiles, 
     burns, maintains on the floor or ground or tramples upon any 
     flag of the United States shall be fined under this Title or 
     imprisoned for not more than one year, or both.

  This bill passed by an overwhelmingly bipartisan vote. There are not 
many things which go through the Senate on a vote of 91 to 9, but the 
determination to pass a constitutional statute to protect the flag from 
physical desecration was one of them. Going back and looking at that 
rollcall vote, we should be proud of our actions. Current Senators, 
including my colleagues on the Judiciary Committee, Senators Biden and 
Herb Kohl, supported the bill. So too did my colleague from Kentucky, 
Senator McConnell, who has since been elected majority whip. A number 
of other Senators who are no longer here supported this as well, 
including former Democratic leader Tom Daschle. It was a good bill. But 
the Supreme Court had other ideas.
  On June 11, 1990, the Supreme Court struck down this overwhelmingly 
congressionally approved statute in United States v. Eichman. Again, 
this Court was severely divided along familiar lines. So what now? What 
course of action is available to Congress? They have made it clear you 
can't do this by statute. They made it abundantly clear. The Court had 
given us its opinion. It said that statutory protection of the American 
flag was not content-neutral and therefore violated core constitutional 
rights to expressive conduct. An amendment really is the only way we 
can solve this problem. So Congress began to focus its attention on a 
constitutional amendment that would restore the power of the people to 
protect the flag from acts of physical desecration.
  Those who supported this amendment believed that the Court got this 
one wrong, badly wrong, and it was up to the people to correct these 
decisions. A constitutional amendment is really the only way to do it. 
I am not the only one who has thought so. Some of the most compelling 
statements on behalf of an amendment have come from my colleague from 
North Dakota, Senator Conrad. In the past, he argued forcefully for an 
amendment to fix this problem:

       Because I believe that the flag should have legal 
     protection, I supported statutes last year and today to 
     protect the American flag. But these attempts have failed. 
     And now we are left with no other choice if we believe that 
     the flag deserves protection.

  Senator Conrad went on to say:

       We should let the States decide this matter. If we fail to 
     adopt an amendment today, we will deny the States the right 
     to express their views on this matter.

  That was a statement made in 1990.

       By approving the constitutional amendment before us, we 
     will foster a healthy debate in this country about the Bill 
     of Rights, the freedoms we enjoy, our constitutional 
     guarantees, and how we can legally and legitimately protect 
     the flag. It is for these reasons that I will support a 
     constitutional amendment in this body and let the people 
     decide this important matter.

  I agree with that. That statement was made on June 26, 1990. He was 
right. This is the way to create a debate all over the country that 
would be a debate on virtue and values. I couldn't have said it better 
myself than the way Senator Conrad said it in 1990. An amendment really 
is the only way.
  In a recent letter on this subject, Stephen Presser, professor of 
legal history at Northwestern University School of Law, explained that 
an amendment was and remains our only option. He said:

       We were told by proponents of a statute to correct the 
     Court's error in 1989 that they could draft one that would 
     survive Constitutional challenge. I testified at a hearing 
     before the Judiciary Committee at that time that it could not 
     be done, and, sure enough, in 1990, the Supreme Court ruled 
     in U.S. v. Eichman that the statute (which scholars such as 
     Larry Tribe, for example, told us would be deemed 
     constitutional) was unconstitutional. It is significant that 
     Professor Tribe, along with his Harvard colleague Richard 
     Parker have now clearly taken the position that no flag 
     protection statute can pass Constitutional muster. They are 
     correct: any statute would be deemed by the Court to be the 
     government's unconstitutional favoring of one form of speech 
     over another, and would thus be deemed to be unconstitutional 
     content, discrimination with regard to speech.

  A constitutional amendment is the only way. The alternative is to do 
nothing. Congress believed that it had the power to protect the flag; 
the Court disagreed.
  I listen to many of my colleagues routinely complain that other 
branches are usurping the powers of Congress. I have heard that through 
my whole 30 years in the Congress. They are always complaining about 
the executive branch usurping the powers of Congress. The judicial 
branch is usurping the powers of Congress. Here we have a chance to 
restore those powers:

       The Congress shall have the power to prohibit the physical 
     desecration of the flag of the United States.

  What does that ban? It doesn't ban a thing. All it says is that we 
are going to restore the power the Congress had before five unelected 
Jurists said we didn't have the power.
  When we passed the Flag Protection Act in 1989, we believed we had 
the power to pass that bill. The Court had different ideas. They 
overturned this overwhelmingly bipartisan legislation. We have an 
overwhelmingly bipartisan constitutional amendment here. It isn't 
partisan. It is bipartisan. We will have people come on the Senate 
floor and try to make this a partisan issue, which is all too frequent 
around here, and ignore the fact that a lot of colleagues on both sides 
of the floor, an overwhelming number, are in favor of this amendment.
  If we want a statute to do this, we need to restore our 
constitutional authority to pass it--the alternative to

[[Page S6482]]

our constitutional amendment, a simple amendment, restoring the power 
to the Congress. That is all it does. If you listen to the media, they 
act like it is going to be a ban. It would not be a ban. If we can pass 
this amendment and have it ratified by 38 States, I have no doubt there 
will be a constitutional debate on the floor as to what language will 
protect our beloved flag. It would take at least 60 votes on the floor 
of the Senate to pass any language because of our filibuster rule, so 
it is going to take a supermajority no matter what. We are not about 
that right now. That has nothing to do with this amendment, except it 
would be inevitable. What has to do with it is restoring the power to 
the Congress which was taken by five unelected Justices on the Supreme 
Court. If we want this type of statute, it is important to restore our 
constitutional authority to pass it.
  As I said, the alternative to this amendment is to do absolutely 
nothing and acquiesce in the usurpation of our institutional power by 
another branch of Government. By doing nothing, we accede, through our 
inaction, to a decision by five unelected Justices who took the power 
from an American people over an important cultural issue.
  Abraham Lincoln addressed this issue before becoming President. What 
do you do when the Supreme Court gets it wrong? This is what Lincoln 
taught us:

       The candidate citizen must confess that if the policy of 
     the Government upon vital questions affecting the whole 
     people is to be irrevocably fixed by decisions of the Supreme 
     Court, the instant they are made in ordinary litigation 
     between parties in personal actions, the people will have 
     ceased to be their own rulers, having to that extent 
     practically resigned their Government into the hands of that 
     eminent tribunal.

  Well, that is what Lincoln had to say. Are we going to just continue 
to allow five unelected Jurists to determine what the vast majority of 
the American people believe is right or are we going to continue to 
determine that they are taking away the power that the Congress has 
always had? We should restore that power? That is what this amendment 
  The answer in a democracy is that you let the people decide, 
especially on these sensitive, tough issues. I routinely hear some of 
my liberal colleagues who have recently re-minted themselves as 
progressives, complain that we don't listen to the people enough. They 
encourage direct democracy. They speak at blogging conventions. Let's 
see them put their money where their mouth is. There is nothing more 
discouraging to a democracy than a divided court abandoning its past 
precedent, overturning laws in 48 States, and overturning a duly passed 
Federal statute.
  The reasonable reaction of many Americans might be: why bother? Why 
bother to write and e-mail and petition Congress? Why advocate on 
behalf of legislation? When it is all said and done, the Supreme Court 
will appear deus ex machina and declare those laws unconstitutional, 
even absent any real precedent, text, or tradition to support its 
  Fortunately, that hasn't been the reaction among our Nation's civic 
groups. Everybody from the American Legion, to the Fraternal Order of 
Police, to the Knights of Columbus has urged Congress to support this 
amendment. They have been tireless in their efforts. They see this 
constitutional amendment for what it is. All this constitutional 
amendment does is restore power to the people's representatives in 
Congress. Read it again:

       The Congress shall have power to prohibit the physical 
     desecration of the flag of the United States.

  All it does is restore it to where it was. It was the Court that 
changed the Constitution. It is not us changing it. We are trying to 
restore it to where it was and send a message to the Supreme Court that 
on these great social issues you have to let the elected 
representatives of the people make these decisions for the people, and 
you should quit playing around with issues for which you should not 
have responsibility but the people should.
  This is not a perennial partisan issue. This has not just been 
brought up because we are in an election year. I would bring it up 
every year if we could. The last time it came up was in 2000. This is 
overwhelmingly bipartisan. Republicans and Democrats, liberals, 
moderates, and conservatives all support our efforts. In fact, it makes 
you wonder who would not support it in the Congress because all we are 
trying to do is give the power back to the Congress.
  Quite the contrary. It is broadly supported on both sides of the 
aisle, and the groups supporting it are distinctly nonpartisan.
  At the Judiciary Committee markup of this resolution a few weeks ago, 
Senator Feinstein spoke eloquently on its behalf. She has been one of 
the amendment's strongest supporters. Last week, this is what she had 
to say in an editorial in USA Today:

       Throughout our Nation's history, the flag has been 
     protected by law. In 1989, 48 of our 50 States had statutes 
     restricting flag desecration. . . .But its protection ended 
     in 1989, when the U.S. Supreme Court struck down a Texas law 
     prohibiting flag desecration. Congress responded by passing 
     the Flag Protection Act of 1989, but the Supreme Court struck 
     down that law as well. The only way to restore protection to 
     the flag is to amend the Constitution. Otherwise, any 
     legislation passed by Congress would be struck down.
       The flag Protection Amendment would not prohibit flag 
     burning. Rather, the amendment would simply return to 
     Congress the ability to protect the flag as it has been 
     protected throughout most of this Nation's history.

  That is what she said. This is not a partisan issue. I am confident 
that all of this constitutional amendment's supporters would prefer to 
see it off the agenda. We want it passed and sent to the American 
people for ratification. We are getting very close. We have voted on 
this amendment in the Senate only twice before. The last time we voted 
on it was in 2000. Right now, we have 60 upfront cosponsors. Three of 
my colleagues who are not cosponsors voted for the amendment as 
Senators in 2000. Another three voted for it while members of the House 
of Representatives. These are people who are not among the 60.
  In the case of Senator Menendez, he is going to have the opportunity 
to vote for it twice in the same Congress--once as a Member of the 
House, where he did, and now as a Senator. That is pretty unique.
  I have no doubt that if Members voted their consciences, we would be 
well above the required 67 votes. Unfortunately, radical special 
interest groups are strongly opposed to this amendment. It appears from 
some press accounts that they are prepared to bring down the hammer, 
unless some Members pull back their support with inspired and last-
minute changes of heart.

  I know many newspaper editorial boards oppose this amendment. They 
still think it is a banning amendment. They think we are banning flag 
desecration. No, we are not. Right now, this amendment says the 
Congress will have the power to prohibit the physical desecration of 
the flag of the United States. It doesn't ban anything. Many law 
professors--or some at least--oppose this amendment. The ACLU opposes 
this amendment. But the people support it. It is insulting to them to 
suggest that they want to amend the first amendment, as the talking 
points opposed to our effort put it. This proposal does not amend the 
first amendment; it restores the power of the people to the people.
  Do over 60 colleagues oppose the first amendment? Bipartisan 
colleagues. Do the majority of Americans in every State oppose the 
first amendment? Do some of our Nation's finest civic organizations 
oppose the first amendment? Do four Justices on the Supreme Court of 
the United States oppose the first amendment? Of course not.
  But they do think the Court got these decisions badly wrong. They 
think the people have the right to protect the flag, consistent with 
the first amendment. They think the opinion of five unelected Judges 
should not forever bind the American people.
  We need to send this amendment to the States and let them determine 
whether they are going to ratify it. I guarantee you that it will 
create a debate on virtue, which has kept this country the greatest 
country in the world, and values, which our young people need to see 
more of. We will debate it in every State if we can pass this by 67 
  It is beyond time. I do not know what so many of my colleagues fear. 
They say this is not a major issue. Who is kidding whom? This is the 

[[Page S6483]]

flag. This is our national symbol. They say that flag burning is a rare 
occurrence. That is not that rare.
  As this chart indicates--and I will put it up here--flag desecration 
is an ongoing offense against common decency. These are recent 
incidents of flag desecration: Montpelier, VT, June 19, 2004; 
Littleton, NH, September 9, 2004; Las Vegas, NV, September 11, 2004; 
Sarasota, FL, December 20, 2005; St. Clair Shores, MI, August 27, 2005; 
Beaumont, TX; Hurricane, UT, July 4, 2005, right on Independence Day; 
Maryville, TN, July 4, 2005; Murrieta, CA, July 2, 2005; Sarasota, FL, 
June 28, 2005. There are many more listed here; that is just mentioning 
some of these. We know there are a lot more than that, I am sure.
  Look at this article that just happened a few days ago. A reward was 
offered Friday for information leading to the arrest of whoever burned 
seven American flags in the Marine Park section of Brooklyn this week. 
This is dated June 23, by the way, 2006, last week:

       The flags, including one that was hung by a couple after 
     their son was killed in the September 11, 2001, terrorist 
     attacks. They were burned in what police said was a case of 
     criminal mischief. Residents of seven homes woke up Thursday 
     morning to find their flags torched, police said. 
     Investigators said they believe the flag burning occurred 
     some time overnight. ``As we approach the celebration of our 
     Nation's independence, this July 4, some vandal has defined 
     our freedoms, rights, and liberties by setting fire to the 
     American flag,'' said State Senator Martin Golden who offered 
     a $1,000 reward. ``Flag burning is something we will not 
     tolerate in our neighborhood''.

  Regina Coyle said:

       I can't believe someone would actually invade our personal 
     space. We lost so much. It is the flag.

  Other residents said they found the vandalism equally upsetting.
  All I can say is that you can go back in time and find hundreds, 
maybe even thousands of these incidents. We are not even talking about 
those we don't know about. For the American people, and for me, even 
one instance of flag burning is one too many. My brother died in the 
Second World War fighting for us. Another brother-in-law died in 
Vietnam. We buried our top sergeant marine brother-in-law in Arlington 
a year or so ago. I feel deeply about this.
  The first amendment guarantees another right besides the freedom of 
speech. It gives the American people the right ``to petition the 
Government for a redress of grievances.'' I have to tell you, the 
American people are aggrieved, sick and tired of unelected judges 
taking the most important issues out of the hands of the people and 
their representatives and acting like junior legislators who will draft 
our social policies for us. This is bad for democracy, and it is 
inconsistent with the American Constitution. The American people have 
spoken in a historic event. All 50 States--every one of them--have 
petitioned the Congress to protect the American flag, every one of 
them. So if you hear some who are opposed to this constitutional 
amendment come on the Senate floor and say ``this is political, this is 
an election year,'' think about that.
  All 50 States have petitioned us to do what this amendment will do: 
restore the Constitution to what it was before these five unelected 
Justices changed it.
  As I said before, if we are to be responsive to our constituents, we 
only have one option: We must pass this amendment and send it to the 
States for ratification.
  I understand some of my colleagues have some reservations about the 
amendment. Some are very sincere--not all but some are. I urge them to 
trust the people, to trust their instincts.
  This amendment is not going away so long as I serve in the Senate. I 
will certainly fight for it. Should we pass this amendment, I think we 
would see perhaps the greatest public debate that we have witnessed in 
our lifetime. The debate over ratification in every State will be an 
ongoing history lesson for younger Americans. It will bring them in 
contact with our veterans to whom we owe our freedom, and it will 
introduce them to the civic organizations that are the soul and spirit 
of our democracy.
  Yes, there are some very fine people and noted people who don't think 
we should do this, but if you look at their comments, they are not that 
they don't think we should restore to the Congress that which the 
Congress should have. They are actually treating this amendment as if 
it is an absolute ban of free speech when, in fact, it has nothing to 
do with that.
  I have to admit, if we pass this amendment and it is ratified, I am 
sure there will be a debate over what form of language should we have 
to protect our beloved flag. What is important is to have our young 
people come in contact with the veterans and others to whom we owe our 
  The Constitution begins with ``We the people,'' and in the end it is 
still we the people, it is the people's Constitution. We should send 
this constitutional amendment to the States. I want everybody to think 
about this. As we hear them talk about: Oh, we must protect our rights 
of free speech, and so forth, this doesn't have anything to do with 
free speech. Read the words. Indirectly, I guess you could say it does 
in the sense that undoubtedly there will be a debate if this is passed 
and ratified, but it would still take a supermajority of the Senate to 
pass any form of statute afterwards. There would be plenty of 
protections for those who would disagree with our position. But for 
those who argued against this amendment, many of whom are constantly 
arguing about the usurpation of congressional powers by the Executive, 
especially when the Executive is not of their own party, this is a 
chance to restore the power back to the Congress that should never have 
been taken by five unelected Jurists to begin with.
  We should send this amendment to the States. We should let the people 
decide because, after all, that is all we would be doing. If we pass 
this constitutional amendment, we will be turning it over to the people 
themselves. Whatever people want to debate they can, and it would take 
an overwhelming 38 States, or three-quarters of the States, to ratify 
this amendment so that it would become the 28th amendment to the 
  I can't think of a more complete declaration of the rights of the 
people than this particular very simple amendment that ``Congress shall 
have power to prohibit the physical desecration of the flag of the 
United States.''
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, pending before the Senate is S.J. Res. 12. 
It is a one-page resolution which is being suggested for passage by the 
Senate. It is a matter which we will likely debate the rest of this 
week. The reason we are going to spend this much time on it is because 
this one-page document represents a historic change in America. If this 
amendment were to be ratified, it would mark the first time in our 
nation's history that we would amend the Bill of Rights of the United 
States of America.
  The handiwork of Thomas Jefferson and our Founding Fathers, which has 
guided our Nation for over 200 years, which has become a model for 
nations around the world in terms of liberty and freedom, is about to 
be changed if the sponsors of this amendment have their way.
  It takes a great deal of audacity for anyone to step up and suggest 
to change the Constitution. It happens. There is an amendment process. 
But in this particular instance, I think what we are about to do is 
  Earlier this month, the Senate debated and voted on a constitutional 
amendment to ban same-sex marriage. This amendment was, of course, 
defeated. Now, as I said, we are debating this constitutional amendment 
to criminalize the desecration of the U.S. flag.
  I am not quite sure that our Senate in which we serve still has its 
bearings. That we would so quickly consider amending this Constitution, 
which has served our Nation so well and for so many years, so 
frequently suggests to me that there may be something at work here that 
goes beyond constitutional law and constitutional study.

[[Page S6484]]

  This marks the fifth time in 17 years that Congress has debated 
amending the U.S. Constitution to prohibit burning or desecration of 
the United States flag--the fifth time. In the final weeks of this 
Congress, with all of the other urgent challenges facing our Nation, 
why are we coming back to this amendment, having finished the same-sex 
marriage amendment unsuccessfully? Well, perhaps the argument has been 
made--and I think my colleague and friend from Utah, Senator Hatch, 
just made it--that there is a serious problem in America with flag-
  The Citizens Flag Alliance is a group that supports Senator Hatch's 
position on flag-burning, and they keep track of how many people in 
this Nation of about 300 million have actually engaged in this 
disgusting practice of burning our flag. So far, in the year 2006 in 
the United States of America, with almost 300 million people, the 
Citizens Flag Alliance has recorded two instances of flag burning--
two--in the entire United States of America. There has been an average 
of only seven acts of flag desecration annually in America in the last 
6 years. So to argue that we have this growing trend toward desecration 
and burning our flag defies the facts.
  Here, the Citizens Flag Alliance gave us a State-by-State background 
where flags were burned or desecrated in the year 2004. So let's count. 
In this column of States: None. In this column of States: Two. And here 
in the State of Vermont: One. So three times in the year 2004, the 
Citizens Flag Alliance found three incidents where flags were 
desecrated--three times in the entire year.
  In 2005, the same group reported a total of 12 instances--one a month 
in the United States of America--of people desecrating and burning 
flags. The source: The Citizens Flag Alliance that supports this.
  So to suggest that the United States is somehow facing a rash of this 
disgusting conduct just isn't true. In fact, it rarely, if ever, 
  So why would we change the handiwork and fine contribution to America 
of Thomas Jefferson and our Founding Fathers? I think there is more to 
the story than what we heard from one of the Senators who came before 
us a few moments ago. I wonder if there are things which we might be 
considering on the floor of the Senate of more importance to the people 
of this country.
  Is changing the Constitution because 4 people desecrated American 
flags this year more important than finding a way to help 1 million 
Americans who lost their health insurance over the last 12 months? Is 
debating this amendment how Congress should be spending its time?
  When we debated the constitutional amendment to ban gay marriage, I 
cited a Gallup poll from April. They went to 1,000 Americans and they 
asked them the following question: What do you think is the most 
important problem facing this country today--1,000 people across our 
Nation. Gay marriage--the subject of the constitutional amendment which 
was defeated and part of the Republican agenda 2 weeks ago--ranked 33rd 
on the list of important issues facing America in this recent poll.
  But wait a minute. What about flag burning? When you ask 1,000 people 
across America the most important problem facing this country today, 
where did it show up on the list of American priorities? It didn't. 
Americans cited 42 different issues as pressing priorities for America, 
but banning flag-burning was nowhere to be found.
  Last week a poll was taken by none other than Fox News. Even though 
they often fail in their self-proclaimed effort to be fair and 
balanced, they asked 900 registered voters around the country this 
question: Which one of the following issues do you think should be the 
top priority for Congress to work on this summer? This is Fox, my 
friends, Fox News. They asked 900 voters, and here are the choices they 
gave them: Iraq, immigration, gas prices, same-sex marriage, and flag-
burning. What did our friends at Fox News discover? What percent of 
Democrats said flag-burning should be the top priority of Congress? 
  In the halls of Fox News, I am sure they said, of course you wouldn't 
expect the Democrats to be patriotic enough to understand that flag-
burning is a top priority. No wonder none of the Democrats in our 900-
person poll identified flag-burning as a top issue.
  But wait. What percentage of Republicans said flag-burning should be 
the top priority of Congress? Zero. That was the single issue that 
united Democrats and Republicans. When they looked at the big issues 
that we could consider, Democrats and Republicans agreed this did not 
belong on the list.
  But it is on the list of the Republican majority in this Senate, and 
we are going to spend a week on it. We are going to spend a week on it, 
instead of talking about energy policy in America and bringing down the 
cost of gasoline for families and businesses and farmers. We are going 
to spend a week debating this amendment, which the American people have 
not even identified as a serious priority or a serious problem, instead 
of dealing with health care in America. We are going to spend an entire 
week debating this, instead of addressing the issue of global warming, 
which is a threat not only to our generation, but generations to come.
  This amendment is truly a solution in search of a problem. Why are we 
debating it again? We know the answer. We are here because the White 
House and the congressional Republican leadership are nervous about the 
upcoming elections. They want to exploit Americans' patriotism for 
their gain in November.
  It is the same thing with the gay marriage amendment. It wasn't a 
priority for America; it is a priority for Karl Rove and the Republican 

  The real issue here isn't the protection of the flag, it is the 
protection of the Republican majority. We are not setting out to 
protect Old Glory; we are setting out to protect old politicians. That 
is what this is about.
  Sadly, Republican leaders are forcing this debate so they can accuse 
some who disagree with them of being unpatriotic and un-American. You 
heard it last week, didn't you? Republicans came to the floor and 
accused Democrats who wanted to start the withdrawal of troops from 
Iraq of wanting to cut and run. Cut and run, cut and run, over and over 
again, from the Republican side--this chest-thumping, bring them on, we 
are loyal to the President at any cost, rhetoric coming forth every 
single day on the Republican side of the aisle. Then GEN Casey pulled 
the rug out from under them. And by the end of the week, he took the 
same position as the Democrats had with their amendment before the U.S. 
  So this week the Republicans are going to come back and say that 
those who won't vote for this flag-burning amendment are somehow 
unpatriotic and un-American. I think the American people are a lot 
smarter than that. I think they are going to see this for the political 
ploy that it is.
  I don't say this very often, but when it comes to changing our 
Constitution to ban flag-burning, I agree with Supreme Court Justice 
Antonin Scalia. Justice Scalia, arguably the most conservative member 
of the Supreme Court, was part of the majority who voted to strike down 
the statute that was previously written to ban flag-burning in 1989. He 
said in speeches that it made him ``furious'' not to be able to put 
that defendant who burned that flag in that case--whom he described as 
a ``bearded, scruffy, sandal-wearing guy burning the American flag''--
in jail. But in Justice Scalia's words:

       I was handcuffed. I couldn't help it. That is my 
     understanding of the first amendment. I can't do the nasty 
     things I'd like to do.

  Like Justice Scalia and most Americans, I am deeply and personally 
offended by the desecration of our flag. I think burning the flag is a 
form of protest that is crude and contemptible. But being contemptible 
and stupid is not unconstitutional in America.
  I think we should show a little humility around here when it comes to 
changing the Constitution. So many of my colleagues are anxious to take 
a roller to a Rembrandt. Since the adoption of the Bill of Rights, 
Members of Congress have proposed more than 11,000 amendments to our 
Constitution. We have passed only 17, and one of these was Prohibition, 
which we later learned was a political mistake and was repealed.
  Why are amendments to the Constitution so rare? Because throughout 
our history, Congress has always understood that we should change our

[[Page S6485]]

Constitution only under the most extraordinary circumstances. We should 
amend it only when it is absolutely essential. It is a sacred document. 
It is part of what defines us as America. To reach in and change Thomas 
Jefferson's Bill of Rights on the floor of the U.S. Senate should be an 
historic moment and every Member should take pause before they do it.
  The flag-burning amendment fails the test. As the Washington Post put 
it recently in an editorial:

       Members of Congress who would protect the flag thus do it 
     far greater damage than a few miscreants with matches.

  That is not just my opinion; it is shared by a lot of people. Colin 
Powell, a man who has given his life to America, in military service at 
the highest levels, here is what he said about this flag-burning 

       I understand how strongly so many of my fellow veterans and 
     citizens feel about the flag and I understand the powerful 
     sentiment of State legislatures for such an amendment. I feel 
     the same sense of outrage. But I step back from amending the 
     Constitution to relieve that outrage. The First Amendment 
     exists to ensure that freedom of speech and expression 
     applies not just to that with which we agree or disagree, but 
     also that which we find outrageous. I would not amend that 
     great shield of democracy to hammer a few miscreants. The 
     flag will be flying proudly long after they have slunk away.

  General Colin L. Powell.
  Steve Chapman writes for the Chicago Tribune, and here is what he 

       If there is anything American conservatives should revere, 
     it's the U.S. Constitution, a timeless work of political 
     genius. Having provided the foundation for one of the freest 
     societies and most durable democracies on Earth, it shouldn't 
     be altered lightly or often.

  Charles Fried is a leading conservative scholar who served as 
Solicitor General of the United States under President Reagan. Here is 
what he said:

       The First Amendment to the United States Constitution has 
     served us since 1791 through wars, including a civil war, and 
     crises of every sort without the need for amendment. It is an 
     icon of our freedom. To amend it now comes close to 

  These are the words of Charles Fried:

       Totalitarian countries fear dissenters sufficiently to 
     suppress their protests. A free Nation relies on having the 
     better argument.

  Incidentally, if we were to pass this constitutional amendment, which 
Senator Hatch and others have brought to the floor, we would join ranks 
with only three other nations on Earth that ban flag-burning, and that 
roster of nations include the following: Cuba, China, and Iran. Oh, 
yes, and Iraq under Saddam Hussein.
  If this amendment were to pass, it would be the first time since 
1978--almost 30 years--that both Houses of Congress passed a 
constitutional amendment.
  I recently read a book review in the New York Times. It was about 
another subject, but there was a quote in there that I think is so 
apropos. Francis Lieber was a 19th century political philosopher and 
author of America's modern laws of war. He cautioned against weakening 
our Constitution during times of war when inflamed passions can make 
rash solutions seem reasonable. Listen to what Francis Lieber said, and 
reflect on what we are doing:

       It requires the power of the Almighty and a whole century 
     to grow an oak tree; but only a pair of arms, an ax and an 
     hour or two to cut it down.

  The Bill of Rights has served this Nation since 1791, and with one 
swift blow of this ax, we are going to chop into the first amendment.
  I can understand why veterans, in particular, are offended by the 
desecration of the flag. They went to battle and risked their lives 
under the red, white, and blue. The current leadership of the American 
Legion, whom I respect very much and work with on many veterans' 
issues, supports this amendment. I respect them for their service to 
America and our national security. But, with all due respect, there are 
many veterans who disagree.
  Keith Kreul is an Army veteran and past national commander of the 
American Legion. Listen to what he wrote in an editorial for the Leader 
Newspapers in Lyndhurst, NJ when the Congress considered this amendment 
in 1998. Here is what he said.

       Our Nation was not founded on devotion to symbolic idols, 
     but on principles, beliefs and ideals expressed in the 
     Constitution and its Bill of Rights. American veterans who 
     protected our banner in battle have not done so to protect a 
     ``golden calf.'' Instead, they carried the banner forward 
     with reverence for what it represents--our beliefs and 
     freedom for all. Therein lies the beauty of our flag.

  So says the former National Commander of the American Legion, Keith 
  Robert Williams was a bomber pilot in World War II with the legendary 
332nd Fighter Group, better known as the Tuskegee Airmen. Listen to 
what he wrote in the Baltimore Afro-American newspaper when this 
amendment came up a few years ago:

       Our unit would never have existed had it not been for the 
     long tradition of--and respect for--lawful protest in our 
     country. . . .

  This Tuskegee Airman wrote:

       I cringe when I see Congress preparing to pass a 
     constitutional amendment that would rewrite the First 
     Amendment--for the first time ever--to ban a form of protest. 
     It is particularly hard for me as an American war veteran 
     [Mr. Williams said] to see this action taken in the name of 
       For while we as a country view our flag as the very essence 
     of patriotism, it is in reality a symbol of that spirit. And 
     if the proposed flag desecration amendment wins final 
     approval, our flag will become a symbol without substance.

  Mr. Williams went on to say:

       Don't get me wrong. No one endorses the idea of burning the 
     flag or desecrating it in any way. It is to me a very 
     repugnant concept. But I find more threatening the idea that 
     we would change the Constitution every time some American 
     came up with a new repugnant way to protest.

  And then there is John Glenn. What can you say about John Glenn, a 
fighter pilot in two wars, one of our premier astronauts, a great 
United States Senator, a marine with such a great record of public 
service? He risked his life so many times for this country. He flew 
under that flag so many times. Here is what he wrote in testimony to 
the Senate Judiciary Committee in 2004:

       Like most Americans I have very, very strong feelings about 
     our flag. Like most Americans, I have a gut reaction in 
     opposition to anyone who would dare to demean, deface, or 
     desecrate the flag of the United States. But also, like most 
     Americans, I am concerned about any effort to amend the 
     Constitution and the Bill of Rights.
       I have watched as those who expressed qualms or doubts or 
     reservations about this amendment run the risk of being 
     smeared, of being labeled as unpatriotic or as a friend of 
     flag burners. . . . Many of us feel unconformable talking 
     about issues that involve such private and personal emotions. 
     We do not wear our emotions on our sleeves, especially when 
     it comes to how we feel about the flag and about patriotism. 
     We do not parade around those things that are sacred to us.

  John Glenn said he was speaking out against the flag burning 
amendment because ``it would be a hollow victory indeed if we preserved 
the symbol of our freedoms by chipping away at fundamental freedoms 
  He went on to say:

       The flag is the Nation's most powerful and emotional 
     symbol. It is our most sacred symbol. And it is our most 
     revered symbol. But it is a symbol. It symbolizes the 
     freedoms that we have in this country, but it is not the 
     freedoms themselves.

  He is right. Our freedoms are dearer than their symbols. S.J. Res. 12 
is overly vague and filled with potential loopholes. What do the words 
``flag desecration'' mean? If someone took a flag and wrote on it, is 
that desecration? Here is an instance where the President of the United 
States, when he was walking through a ropeline, was handed an American 
flag and asked to sign it. I do not believe that is desecration of the 
flag. I don't think anyone would argue that question. But this 
amendment is not clear as to where you would draw a line. As gifted as 
my colleagues may be who have brought this amendment to the floor, I am 
afraid the language they brought is not going to stand the test of 
time. Will we prosecute people for wearing star-spangled bathing suits 
at the beach? How about a T-shirt that fashions the flag into a peace 
sign? Would we put people into jail for sitting on an American flag 
blanket at a Fourth of July picnic? Wiping their mouth with a flag 
  Instead of signing a name on a flag, what if someone wrote ``death to 
America''? Is that now desecration? The symbol of the American flag is 
used to sell everything from cars to cupcakes. Should those ads be 
  One of the most haunting images from Hurricane Katrina was the photo 
of a frail, elderly African-American woman waiting for help with a 
blanket that looked like an American flag wrapped on her shoulders. Is 
that desecration? I don't think so.

[[Page S6486]]

  Would we outlaw only future acts? Could a person be arrested for 
possessing a flag quilt that has been in the family for generations? 
Don't the police in America have more important things to do? How many 
hours would future Congresses spend trying to define what this 
amendment says?
  There is a better way. A number of us are coming together on a 
bipartisan basis to propose a criminal statute that makes it clear that 
when someone damages the U.S. flag with intent to incite or produce 
imminent violence, when someone burns a flag to intentionally threaten 
or intimidate a person, when someone steals a flag that belongs to the 
Federal Government and destroys it, when someone steals a flag and 
destroys it on Federal land--all of these are specific acts that we 
would criminalize. That does not rise to the level of a constitutional 
amendment, but it says that we believe, on a bipartisan basis, the flag 
should be treated differently. The flag does deserve special respect. 
This narrowly tailored solution corrects the mistakes of the statute 
Congress passed in 1989 and the Supreme Court struck down a year later. 
That statute was too broad. This new proposal is specific and clear.
  One of the celebrity supporters of the flag amendment is Rick Monday. 
I bring him up because he was a Chicago Cubs outfielder, and I am 
honored to represent the State of Illinois where there are many Cubs 
fans. He played for the Cubs from 1972 to 1976 and was well known and 
well liked.
  Everyone respects Rick Monday's act of courage 30 years ago at a 
baseball game at Dodgers Stadium when he ran after two people who were 
about to light an American flag on fire. He grabbed the flag away just 
as it was about to be burned.

  But I agree with an editorial published last week in the Chicago Sun-
Times, which said the following:

       Our appreciation of [Rick] Monday was not diminished by his 
     appearance last week at a rally for the proposed flag 
     desecration amendment--an event at which he exhibited the 
     rescued flag, which was presented to him by the Dodgers. But 
     however heartfelt this gesture was, it was wrongheaded in 
     lending support to a manufactured cause with no real value 
     except a political one, the equivalent of throwing red meat 
     on the table.

  Tommy Lasorda is a great baseball manager, and I follow baseball. The 
last time this amendment came up, Senator Hatch brought Tommy Lasorda 
in to testify. Tommy Lasorda recalled the incident; he was the manager 
of the Dodgers on the day it occurred, and Tommy Lasorda was emotional 
about these people trying to burn the flag and Rick Monday running to 
its rescue.
  I asked Tommy Lasorda this question: Did they televise those two guys 
jumping out of the stands and burning the flag on the field?
  He said, ``No.'' I said, ``Why not?''
  ``You televise that sort of thing,'' Tommy Lasorda said, ``and it 
encourages it.''
  So what would be the effect of calling for a constitutional amendment 
on the floor of the Senate to ban an act that occurs so rarely in the 
United States? My fear is that it would only encourage people to 
consider that sort of thing. We would put a spotlight on it instead of 
saying it is only happening two or three times a year, it certainly is 
not a national epidemic deserving of a constitutional amendment.
  This flag amendment is all about the next election so that people who 
vote against it can be labeled as unpatriotic and un-American. There 
are better ways to show our commitment to our Constitution and our flag 
and our veterans. How about health care for our veterans? How about 
making sure we keep our promises to those who return from battle, that 
we keep our promises to them that they be given medical care and 
housing and the education they were promised? I wish the people pushing 
this flag desecration amendment so hard would spend their energy on 
issues far more tangible to our Nation's veterans, such as health care.
  Earlier this year, the President submitted his budget. He proposed to 
shortchange our veterans when it comes to their health. The President's 
budget would force more than 50,000 Illinois veterans, many of whom are 
low income, to pay more for their health care. Their monthly 
prescription drug costs would double.
  The American Legion, one of the most zealous advocates for the flag 
burning amendment, recently issued an action alert letter and said they 
are very concerned about the underfunding of the VA. I salute the 
American Legion. I hope they will channel more energy into helping our 
veterans than into changing our Bill of Rights.
  The commander in chief of the Veterans of Foreign Wars, Jim Mueller, 
said this about President Bush's fiscal year 2007 budget:

       The proposal to increase military retiree healthcare 
     premiums is absolutely unacceptable. . . .I urge Congress to 
     ensure that those serving in uniform and those who served 
     faithfully for many years are not forgotten in the budget 

  Hats off to the VFW and the American Legion for speaking out for 
veterans. Channel that energy into making sure that veterans get a fair 
shake instead of watching a week go by on the floor of the Senate where 
we debate this unnecessary constitutional amendment.
  Giving the veterans a flag amendment is not substitute for health 
  Flag burning does disturb some veterans. Another way of showing 
respect for our veterans is to protect the sanctity of their funerals. 
I am going to be offering an amendment tomorrow to do just that.
  By now, many Americans have heard of the disgraceful and hateful 
actions of one man named Fred Phelps. Mr. Phelps calls himself a 
minister, a religious minister. But his gospel seems to begin and end 
with hatred and intolerance. About 15 years ago, this Mr. Phelps and a 
small band of his followers began picketing funerals of people who have 
died of HIV/AIDS. They have reportedly picketed 22,000 funerals.
  When their vile acts of hatred and bigotry stop generating the 
publicity they seek, they looked for new targets. They began to stage 
protests at the funerals of our brave young men and women who have 
given their lives fighting for America in Iraq and Afghanistan. In the 
past year, these so-called Christians, these hate-mongers, who would 
use the Bible as their shield, have protested at more than 100 military 
  They claim the deaths of American Armed Forces, if you can believe 
this--they claim the deaths of American soldiers are God's punishment 
for Americans' tolerance of gays and lesbians. That is an affront to 
civilized behavior. There may well be a special place in the afterlife 
for people like Mr. Phelps, but there is no place for his brand of 
hatred at veterans' funerals in this life.
  Last month, Congress passed and the President signed into law the 
Respect for America's Fallen Heroes Act, which prohibits their 
demonstrations at or around our national cemeteries. Tomorrow, I am 
going to offer an amendment to this measure--a statutory amendment not 
a constitutional amendment--to expand that previous law so it applies 
to the funerals of all veterans, whether they are buried in a national 
cemetery, a church cemetery, or anywhere else.
  My amendment will also prohibit protests at funeral homes, houses of 
worship, and other locations where deceased veterans are honored and 
buried. We can honor our veterans and protect their loved ones from 
this intrusion on their grief without weakening our Constitution and 
the freedoms for which veterans fought.
  I hope my colleagues join me. I will offer my proposal as an 
amendment to the Bennett/Clinton amendment to this underlying bill so 
we can, in one amendment, criminalize the burning and defacing of the 
flag and also protect military funerals from Mr. Phelps and others like 
him who would bring great disrespect at the funerals of our soldiers 
who deserve the highest respect.
  I have been very careful in writing this amendment to make sure it 
follows the previous law, so there will be no successful constitutional 
challenges in that regard.
  I am also considering an amendment which I think is long overdue. It 
would ban the consideration of constitutional amendments in election 
years. We have seen too darned much politicking with the Constitution 
in this Chamber this month.
  James Madison wrote in Federalist 49 in 1788 that the U.S. 
Constitution should be amended only on ``great and extraordinary 
occasions.'' It appears now that biennial elections are great

[[Page S6487]]

and extraordinary occasions in the minds of the Republican leadership 
of the Senate. Madison warned of the ``danger of disturbing the public 
tranquility by interesting too strongly the public passions'' through 
frequent constitutional amendments. Over 11,000 proposed constitutional 
amendments have been introduced in Congress, including 66 during the 
current 109th Congress.
  Over the past three decades, the number of proposed constitutional 
amendments considered on the Senate floor has increased dramatically. 
When in doubt here, amend the Constitution: from two amendments between 
1973 and 1983, to five amendments between 1983 and 1993, nine 
amendments between 1993 and 2003, to four already in this 3-year cycle 
since 2003.
  There appears to be a trend toward considering constitutional 
amendments on the Senate floor during even-numbered years which, 
coincidentally, happen to be election years.
  Constitutional amendments should be considered by Congress without 
politicization. We should consider these for the serious suggestions 
that they are, instead of electioneering, and that is what has happened 
too often on the floor of the Senate.
  Americans' reverence for the flag does not have to be coerced or 
policed. It is something we feel in our bones. When it comes to the 
Bill of Rights, I trust Thomas Jefferson a lot more than Karl Rove. I 
believe the words of Thomas Jefferson have endured. I believe the 
political tactics of Mr. Rove and the Republican Party will not endure 
when it comes to using the Constitution for political purposes.

  Remember what happened after September 11? Remember all the American 
flags that suddenly appeared? Stores sold out of flags. In a time of 
national trauma and grief, these flags were our comfort and our 
strength. They were a visible symbol of our unity and our faith that 
America would endure. Our Nation had suffered a terrible loss, but the 
American flag waved proudly.
  Sadly, in the 5 years since then, with our Nation at war, there are 
those who seek to pit us one against the other for political reasons. 
Now they want to use our flag as a wedge issue in this election.
  This political effort to ``brand'' the flag as belonging to one party 
causes some to feel sad and disillusioned. Bill Moyers, the journalist, 
thinker, and former Presidential adviser, was among many who felt 
troubled by the effort to redefine respect for the flag as a partisan 
  Last year, Bill Moyers made a speech about freedom in America in 
which he talked about the flag. He offered some profound words of 
wisdom that are worth reflecting upon today. He said the following:

       I wore my flag tonight. First time. Until now I haven't 
     thought it necessary to display a little metallic icon of 
     patriotism for everyone to see. It was enough to vote, pay my 
     taxes, perform my civic duties, speak my mind, and do my best 
     to raise our kids to be good Americans.
       Sometimes I would offer a small prayer of gratitude that I 
     had been born in a country whose institutions sustained me, 
     whose armed forces protected me, and whose ideals inspired 
     me; I offered my heart's affections in return. It no more 
     occurred to me to flaunt the flag on my chest than it did to 
     pin my mother's picture on my lapel to prove her son's love. 
     Mother knew where I stood; so does my country. I even tuck a 
     valentine in my tax returns on April 15.
       So what's this doing here? Well, I put it on to take it 
     back. The flag's been hijacked and turned into a logo--the 
     trademark of a monopoly on patriotism. On those Sunday 
     morning talk shows, official chests appear adorned with the 
     flag as if it is the good housekeeping seal of approval. 
     During the State of the Union, did you notice Bush and Cheney 
     wearing the flag? How come? No administration's patriotism is 
     ever in doubt, only its policies. And the flag bestows no 
     immunity from error. When I see flags sprouting on official 
     lapels, I think of the time in China when I saw Mao's little 
     red book on every official's desk, omnipresent and unread.

  I think Bill Moyers had it right. The flag amendment should not be 
used as a proxy for patriotism.
  I respect our flag as the symbol of the freedom granted to us by the 
Bill of Rights, and it is painful for me to see it burned or otherwise 
defiled. I strongly believe that flag burning is an insensitive and 
shameful act, but I believe that it would be destructive to amend the 
Bill of Rights for the first time in our nation's history and restrict 
the precious freedoms ensured by the first amendment, simply to address 
an act which occurs in America only a few times a year.
  The real test of our belief in the Bill of Rights--the real test of 
our patriotism--is when we rise in defense of the rights of those whose 
views we disagree with or even despise. The right to free speech is a 
bedrock of our democracy. Amending our Constitution's Bill of Rights 
would be a strike against the very freedoms for which the flag stands 
and for which so many Americans have given their lives.
  Mr. GRASSLEY. Mr. President, I rise today in support of S.J. Res. 12, 
the proposal to amend our Constitution to return to Congress the 
authority to legislate on the issue of flag desecration. Like my 
colleagues, I do not take lightly the concept of amending our 
Constitution, but in this area, a runaway judiciary has left us no 
  No other emblem is as synonymous or representative of our Nation as 
the American flag. No other image depicts as readily the freedoms and 
ideals our men and women in uniform have battled for. Americans proudly 
fly our flag to demonstrate their love for our country and for their 
neighbors. Schoolchildren have been pledging allegiance to it every 
morning for decades. The American flag has been flown in times of 
battle, of victory, and of national tragedy. It is the most recognized 
symbol of freedom and democracy in the world.
  Our flag should be protected from those who would desecrate it and 
demonstrate a basic lack of respect for our national heritage. At the 
very least, decisions about whether and how to protect our flag should 
be made by the legislative branch, not the unelected judiciary.
  The proposal before us today would not immediately ban flag 
desecration, as its opponents would lead you to believe. Rather, it 
would return the power to legislate on the issue to Congress and the 
States, where it belongs. This constitutional amendment will restore 
the legislative authority to protect our flag to the legislative 
  I will be voting in favor of this amendment, and I urge my colleagues 
to join me in doing the same.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Cornyn). The assistant majority leader.