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104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    104-151
_______________________________________________________________________


 
                            FLAG DESECRATION

                                _______


   June 22, 1995.--Referred to the House Calendar and ordered to be 
                                printed

_______________________________________________________________________


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

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                      [To accompany H.J. Res. 79]

      [Including cost estimate of the Congressional Budget Office]
    The Committee on the Judiciary, to whom was referred the 
joint resolution (H.J. Res. 79) proposing an amendment to the 
Constitution of the United States authorizing the Congress and 
the State to prohibit the physical desecration of the flag of 
the United States, having considered the same, report favorably 
thereon without amendment and recommend that the joint 
resolution do pass.
                           TABLE OF CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Resolution...........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Votes of the Committee...........................................     5
Committee Oversight Findings.....................................     6
Committee on Government Reform and Oversight Findings............     6
New Budget Authority and Tax Expenditures........................     6
Congressional Budget Office Cost Estimate........................     6
Inflationary Impact Statement....................................     7
Constitutional Amendment Procedures..............................     7
Section-by-Section Analysis and Discussion.......................     7
Agency Views.....................................................     9
Dissenting Views.................................................    15
                          purpose and summary

    H.J. Res. 79 proposes to amend the Constitution to allow 
Congress and the States to prohibit the physical desecration of 
the flag of the United States.
    The proposed amendment reads simply: ``The Congress and the 
States shall have power to prohibit the physical desecration of 
the flag of the United States.'' The amendment itself does not 
prohibit flag desecration. It merely empowers Congress and the 
States to enact legislation to prohibit the physical 
desecration of the flag and establishes boundaries within which 
they may legislate. Prior to the Supreme Court decision in 
Texas v. Johnson, 109 S.Ct. 2533 (1989), forty-eight states and 
the Federal Government had laws on the books prohibiting 
desecration of the flag. The purpose of the proposed 
constitutional amendment is to restore the power to protect the 
flag to the States and to Congress.

                 background and need for the resolution
    In June of 1989, the United States Supreme Court in Texas 
v. Johnson, 109 S.Ct. 2533, held that the burning of an 
American flag as part of a political demonstration was 
expressive conduct protected by the First Amendment to the U.S. 
Constitution. After publicly burning a stolen American Flag in 
a protest outside of the 1984 Republican National Convention in 
Dallas, Texas, Gregory Johnson was convicted of desecrating a 
flag in violation of Texas law. The Texas law prohibited the 
intentional desecration of a national flag in a manner in which 
``the actor knows will seriously offend one or more persons 
likely to observe or discover his action.'' \1\ His conviction 
was upheld by the Court of Appeals for the Fifth District of 
Texas at Dallas, but reversed by the Texas Court of Criminal 
Appeals. The 5-4 U.S. Supreme Court opinion affirmed the 
decision of the Court of Criminal Appeals: Johnson's conviction 
was inconsistent with the First Amendment because his actions 
constituted ``symbolic free expression.''
    \1\ Tex. Penal Code Ann. Section 42.09(a)(3), Desecration of a 
Venerated Object, provides as follows: (a) A person commits an offense 
if he intentionally or knowingly desecrates:
---------------------------------------------------------------------------

        (1) a public monument;
        (2) a place of worship or burial; or
        (3) a state or national flag.
    (b) For purposes of this section, ``desecrate'' means deface, 
damage, or otherwise physically mistreat in a way that the actor knows 
will seriously offend one or more persons likely to observe or discover 
his action.
    (c) An offense under this section is a Class A misdemeanor.
    Justice Rehnquist filed a dissenting opinion in which 
Justices O'Connor and White joined.\2\ Justice Rehnquist noted 
the unique history of the American Flag:
    \2\ Justice Stevens filed a separate dissenting opinion.

          The American Flag, then, throughout more than 200 
        years of our history, has come to be the visible symbol 
        embodying our Nation. It does not represent the views 
        of any particular political party, and it does not 
        represent any particular political philosophy. The flag 
        is not simply another ``idea'' or ``point of view'' 
        competing for recognition in the marketplace of ideas. 
        Millions and millions of Americans regard it with an 
        almost mystical reverence regardless of what sort of 
        social, political, or philosophical beliefs they may 
        have. I cannot agree that the First Amendment 
        invalidates the Act of Congress, and the laws of 48 of 
        the 50 States, which make criminal the public burning 
---------------------------------------------------------------------------
        of the flag. Texas v. Johnson, 109 S. Ct. at 2552.

Justice Rehnquist also pointed out that Chief Justice Earl 
Warren, and Justices Black and Fortas all expressed the view 
that the States and the Federal Government had the power to 
protect the American Flag from desecration and disgrace.
    In response to the Johnson decision, in September of 1989, 
Congress passed the ``Flag Protection Act of 1989'' under 
Suspension of the Rules by a vote of a 380 to 38. The Act 
amended the Federal Flag Statute (18 U.S.C. 700) attempting to 
the make it ``content-neutral'' so that it would pass 
constitutional muster. As stated in the House Judiciary 
Committee report, ``the amended statute focuses exclusively on 
the conduct of the actor, irrespective of any expressive 
message he or she might be intending to convey.'' \3\
    \3\ ``Flag Protection Act of 1989'', H. Rep. No. 101-231, 101st 
Cong., 1st Sess. 2 (1989). The Act became law without the President's 
signature on October 28, 1989 (Pub. L. 101-131).
---------------------------------------------------------------------------
    On June 11, 1990, in United States v. Eichman, 496 U.S. 
311, the Supreme Court in another 5-4 decision struck down the 
newly-enacted ``Flag Protection Act of 1989'', ruling that it 
infringed on expressive conduct protected by the First 
Amendment. Although the Government conceded that flag burning 
constituted expressive conduct, it claimed that flag burning, 
like obscenity or ``fighting words'' was not fully protected by 
the First Amendment. The Government also argued the ``Flag 
Protection Act'' was constitutional because, unlike the Texas 
statute struck down in Texas v. Johnson, the Act was ``content-
neutral'' and simply sought to protect the physical integrity 
of the flag rather than to suppress disagreeable communication.
    Justice Brennan, writing for the majority, rejected the 
Government's argument, noting that:

          Although the Flag Protection Act ``contains no 
        explicit content-based limitation on the scope of 
        prohibited conduct, it is nevertheless clear that the 
        Government's asserted interest is ``related `to the 
        suppression of free expression,' '' 491 U.S., at 410, 
        109 S.Ct., at 2543, and concerned with the content of 
        such expression. [T]he Government's desire to preserve 
        the flag as a symbol for certain national ideals is 
        implicated ``only when a person's treatment of the flag 
        communicates [a] message'' to others that is 
        inconsistent with those ideals. U.S. v. Eichman, 110 S. 
        Ct. 2404 (1990).

    Justice Stevens wrote a dissenting opinion in which Chief 
Justice Rehnquist, Justice White and Justice O'Connor joined. 
He expressed unanimous agreement with the proposition expressed 
by the majority that ``the Government may not prohibit the 
expression of an idea simply because society finds the idea 
itself offensive or disagreeable.'' He went on, however, to 
note that methods of expression may be prohibited under a 
number of circumstances and set forth the following standard:

          If (a) the prohibition is supported by a legitimate 
        societal interest that is unrelated to suppression of 
        the ideas the speaker desires to express; (b) the 
        prohibition does not entail any interference with the 
        speaker's freedom to express those ideas by other 
        means; and (c) the interest in allowing the speaker 
        complete freedom of choice among alternative methods of 
        expression is less important than the societal interest 
        supporting the prohibition. Eichman, 496 U.S., at 319.

Justice Stevens felt that the statute satisfied each of these 
concerns and thus should have withstood constitutional 
scrutiny.
    Once the Supreme Court ruled a second time that flag 
burning was expressive speech protected by the First Amendment, 
it became apparent that no statute could adequately protect the 
U.S. Flag from desecration--a constitutional amendment was 
necessary. On June 21, 1990, the house considered H.J. Res. 
350, an identical amendment to H.J. Res. 79. The amendment was 
rejected by a vote of 254 to 177.
    Since that time, forty-nine states have passed resolutions 
calling on Congress to pass an amendment to protect the flag of 
the United States from physical desecration and send it back to 
the States for ratification.\4\
    \4\ Vermont has passed the resolution in both Houses, but in 
separate sessions.
---------------------------------------------------------------------------

                                hearings

    The Committee's Subcommittee on the Constitution held one 
day of hearings on the need for an amendment to the 
Constitution of the United States authorizing the Congress and 
the States to prohibit the physical desecration of the flag of 
the United States on May 24, 1995. Testimony was received from 
nine witnesses: Representative Gerald B.H. Solomon; 
Representative G.V. ``Sonny'' Montgomery; Stephen B. Presser, 
Raoul Berger Professor of Legal History, Northwestern 
University School of Law; Clint Bolick, Vice President and 
Director of Litigation, Institute for Justice; Rose E. Lee, 
Washington Representative, Gold Star Wives of America; 
Commander William Detweiler, National Commander, The American 
Legion; Adrian Cronauer, Senior Associate, Maloney & Burch; 
Bruce Fein, Attorney and Columnist; Robert Nagel, Ira 
Rothgerber Professor of Constitutional Law, University of 
Colorado; with additional material submitted by three 
organizations: The American Legion, the Emergency Committee to 
Defend the First Amendment and the American Bar Association.

                        committee consideration

    On May 25, 1995, the Subcommittee on the Constitution met 
in open session and ordered reported the resolution H.J. Res. 
79, by a rollcall vote of 7 to 5, a quorum being present. On 
June 7, 1995, the Committee on the Judiciary met in open 
session and ordered reported the resolution H.J. Res. 79 by a 
rollcall vote of 18-12, a quorum being present.

                         votes of the committee

    The Committee then considered the following with recorded 
votes:
    1. Mr. Reed offered an amendment to substitute physical 
desecration of the flag of the United States with a prohibition 
on burning, trampling, or rending of the flag of the United 
States as well as the requirement that Congress determine by 
law what constitutes the flag of the United States. The Reed 
amendment was defeated by a rollcall vote of 6-22.
        AYES                          NAYS
Mrs. Schroeder                      Mr. Hyde
Mr. Frank                           Mr. Moorhead
Mr. Bryant (TX)                     Mr. Sensenbrenner
Mr. Reed                            Mr. McCollum
Mr. Scott                           Mr. Coble
Mr. Jackson Lee                     Mr. Schiff
                                    Mr. Canady
                                    Mr. Inglis
                                    Mr. Goodlatte
                                    Mr. Hoke
                                    Mr. Bono
                                    Mr. Heineman
                                    Mr. Bryant (TN)
                                    Mr. Chabot
                                    Mr. Flanagan
                                    Mr. Barr
                                    Mr. Conyers
                                    Mr. Berman
                                    Mr. Boucher
                                    Mr. Nadler
                                    Mr. Watt
                                    Mr. Becerra

    2. A motion to favorably report H.J. Res. 79 was agreed to 
by a rollcall vote of 18-12.
        AYES                          NAYS
Mr. Hyde                            Mr. Conyers
Mr. Moorhead                        Mrs. Schroeder
Mr. Sensenbrenner                   Mr. Frank
Mr. McCollum                        Mr. Berman
Mr. Gekas                           Mr. Boucher
Mr. Coble                           Mr. Bryant (TX)
Mr. Schiff                          Mr. Reed
Mr. Canady                          Mr. Nadler
Mr. Inglis                          Mr. Scott
Mr. Goodlatte                       Mr. Watt
Mr. Buyer                           Mr. Becerra
Mr. Hoke                            Ms. Jackson Lee
Mr. Bono
Mr. Heineman
Mr. Bryant (TN)
Mr. Chabot
Mr. Flanagan
Mr. Barr

                      committee oversight findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         committee on government reform and oversight findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               new budget authority and tax expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increase tax expenditures.

               congressional budget office cost estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the resolution, H.J. Res. 79, the 
following estimate and comparison prepared by the Director of 
the Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 13, 1995.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.J. Res. 79, a joint resolution proposing an 
amendment to the Constitution of the United States authorizing 
the Congress and the states to prohibit the physical 
desecration of the flag of the United States, as ordered 
reported by the House Committee on the Judiciary on June 7, 
1995. We expect the enactment of this resolution would result 
in no significant cost or savings to the federal government, 
and no cost to state and local governments. Because enactment 
of H.J. Res. 79 would not affect direct spending or receipts, 
pay-as-you-go procedures would not apply to the bill.
    The joint resolution would propose amending the 
constitution to prohibit the physical desecration of the U.S. 
flag. Enacting this resolution could impose additional costs on 
U.S. law enforcement and the court system to the extent that 
cases involving desecration of the flag are pursued and 
prosecuted. However, CBO does not expect any resulting costs to 
be significant. To become effective, two-thirds of the members 
of both houses would have to vote to approve the resolution, 
and three-fourths of the states would have to ratify the 
proposed amendment within seven years.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                         June E. O'Neill, Director.
                     inflationary impact statement

    Pursuant to clause 2(l)(4) of rule XI of the Rules of the 
House of Representatives, the Committee estimates that H.J. 
Res. 79 will have no significant inflationary impact on prices 
and costs in the national economy.

                  constitutional amendment procedures

    Article V of the United States Constitution provides that 
the Congress has the authority to propose amendments to the 
Constitution. Such proposed amendments must be approved by a 
two-thirds vote of both Houses. Congress must also specify 
whether the ratification process is to be done through State 
legislatures or by State conventions. In either case, a 
proposed amendment must be ratified by three-fourths of the 
State legislatures or State conventions. H.J. Res. 79 calls for 
ratification by State legislatures.

               section-by-section analysis and discussion

    H.J. Res. 79 simply states ``[t]he Congress and the States 
shall have power to prohibit the physical desecration of the 
flag of the United States.''
    This proposed constitutional amendment sets the parameters 
for future action by the State legislatures and the Congress on 
this issue. After the amendment is ratified, the elected 
representatives of the people will once again have the power 
and can decide whether to enact legislation to prohibit the 
physical desecration of the flag.
    There are two key issues that will need to be resolved by 
state legislatures and the Congress if they decide to enact 
legislation to protect the flag from physical desecration.
    First, they may specify the scope of conduct that will 
constitute ``physical desecration.'' The amendment itself 
requires physical contact with the flag. The legislature could 
not punish mere words or gestures directed at the flag, 
regardless of how offensive they were. Webster's Ninth New 
Collegiate Dictionary defines ``desecrate'' as follows: ``1. to 
violate the sanctity of: PROFANE 2: to treat irreverently or 
contemptuously often in a way that provokes outrage on the part 
of others.'' ``Desecrate'' is defined in Black's Law Dictionary 
as ``to violate sanctity of, to profane, or to put to unworthy 
use.'' The legislatures could clearly prohibit burning, 
shredding and similar defilement of the flag. In addition, the 
term ``desecrate'' clearly implies that the physical act must 
demonstrate contempt for the flag.
    During the Full Committee markup, Representative Jack Reed 
(D-RI) proposed to replace ``physical desecration'' with 
language that would allow statutes prohibiting ``burning, 
trampling, or rending'' of the flag of the United States. The 
Reed language would have prevented States and the Congress from 
prohibiting acts such as throwing garbage or other forms of 
waste on the flag. More importantly, it would have allowed 
Congress and the States to criminalize conduct, such as burning 
a worn or soiled flag--a proper method of disposal--where the 
action was taken out of respect for the flag rather than with 
the intent to ``desecrate'' or defile it.
    Second, legislatures may specify what representations of 
the flag of the United States are to be protected. Of course, 
the resolution in no way changes the fact that the authority to 
determine what constitutes the official design of the flag of 
the United States rests with the United States Congress. It is 
currently defined at 4 U.S.C. 1. States and the Congress will 
be able to decide, however, which representations of the flag 
are to be protected from physical desecration as they seek to 
enact statutes on this issue. They may protect the flag of the 
United States in cloth form, or other material readily capable 
of being waved or flown, with the characteristics of the 
official flag of the United States as described in 4 U.S.C. 1 
or a ``flag'' could be any representation that a reasonable 
person would perceive to be a flag of the United States even if 
it were not precisely identical to the flag as defined by 4 
U.S.C. 1. This would allow states and the Congress to prevent a 
situation whereby a representation of a United States flag with 
forty-nine stars or twelve red and white stripes were burned in 
order to circumvent the statutory prohibition.
                              AGENCY VIEWS

                        U.S. Department of Justice,
                                   Office of Legal Counsel,
                                     Washington, DC, June 14, 1995.
Hon. Charles T. Canady,
Chairman, Subcommittee on the Constitution, Committee on the Judiciary, 
        House of Representatives, Washington, DC.
    Dear Mr. Chairman: As you are aware, in 1989 the Supreme 
Court held in Texas v. Johnson, 491 U.S. 397, that a state 
could not, consistent with the First Amendment, enforce a 
statute criminalizing flag desecration against a demonstrator 
who burned an American flag. In 1990, in United States v. 
Eichman, 496 U.S. 310, the Court held that the First Amendment 
prohibited the conviction of demonstrators for flag burning 
under a federal statute that criminalized mutilating, defacing, 
or physically defiling an American flag.
    For five years, then, the flag has been left without any 
statutory protection against symbolic desecration. For five 
years, one thing, and only one thing, has stood between the 
flag and its routine desecration: the fact that the flag, as a 
potent symbol of all that is best about our country, is justly 
cherished and revered by nearly all Americans. Senator Hatch 
has eloquently described the flag's status among the American 
people:

          The American flag represents in a way nothing else 
        can, the common bond shared by a very diverse people. 
        Yet whatever our differences of party, politics, 
        philosophy, race, religion, ethnic background, economic 
        status, social status, or geographic region, we are 
        united as Americans. That unity is symbolized by a 
        unique emblem, the American flag. 141 Cong. Rec. S4275 
        (daily ed. Mar. 21, 1995).

    It is precisely because of the meaning the flag has for 
virtually all Americans that the last five years have witnessed 
no outbreak of flag burning, but only a few isolated instances, 
immediately and roundly condemned. If proof were needed, we 
have it now: with or without the threat of criminal penalties, 
the flag is amply protected by its unique stature as an 
embodiment of national unity and ideals.
    It is against this background that one must assess the need 
for a proposed constitutional amendment (S.J. Res. 31) that 
would permit the criminal punishment of those who ``physically 
desecrate'' the American flag. The amendment, if adopted, would 
for the first time in our history alter the Bill of Rights 
adopted over two centuries ago. Whether in the future some set 
of truly exigent circumstances might justify tampering with the 
Bill of Rights is a question we can put to one side here. For 
you are asked to assume the risk inherent in a first-time edit 
of the Bill of Rights in the absence of any meaningful evidence 
that the flag is in danger of losing its symbolic value.
    The unprecedented amendment before you would create 
legislative power of uncertain dimension to override the First 
Amendment and other constitutional guarantees. More 
fundamentally, it would run counter to our traditional 
resistance, dating back to the time of the Founders, to 
resorting to the amendment process. For these reasons, the 
proposed amendment--and any other proposal to amend the 
Constitution in order to punish a few isolated acts of flag 
burning--should be rejected by this Congress.
    At the outset, and in an excess of caution, I would like to 
note that our disagreement about the wisdom of the proposed 
amendment does not in any way reflect disagreement about the 
proper place of the flag in our national community. The 
President always has and always will condemn in the strongest 
of terms those who would show disrespect to the symbol of our 
country's highest ideals.
    The President's record reflects his long-standing 
commitment to protection of the American flag, and his profound 
abhorrence of flag burning and other forms of flag desecration. 
In 1989, after the Supreme Court invalidated the Texas statute 
at issue in Johnson, then-Governor Clinton responded promptly 
by recommending enactment of a new State law prohibiting all 
intentional destruction of a flag. The President worked hard to 
craft legislation that would survive Supreme Court review, and 
his view was that the statute was consistent with the First 
Amendment. As you know, however, the Supreme Court's subsequent 
decision in Eichman, invalidating the Federal Flag Protection 
Act, appears to foreclose legislative efforts to prohibit flag 
burning. In the wake of Johnson, then-Governor Clinton also 
instituted a state-wide ``flag respect'' program to teach 
school children proper appreciation for the flag. Working with 
veterans groups in Arkansas, Governor Clinton created a program 
that went on to win awards from the Veterans of Foreign Wars 
and the Vietnam Veterans of America.
    The text of the proposed amendment is short enough to quote 
in full: ``The Congress and the States shall have power to 
prohibit the physical desecration of the flag of the United 
States.'' The scope of the amendment, however, is anything but 
clear. Because the proposed amendment fails to state explicitly 
the degree to which it overrides other constitutional 
guarantees, it is entirely unclear how much of the Bill of 
Rights it would trump.
    By its terms, the proposed amendment does no more than 
confer affirmative power upon Congress and the States to 
legislate with respect to the flag. Its wording is similar to 
the power-conferring clauses found in Article I, Section 8 of 
the Constitution: ``Congress shall have power to lay and 
collect taxes,'' for instance, or ``Congress shall have power * 
* * to regulate commerce * * * among the several States.'' Like 
those powers, and all powers granted government by the 
Constitution, the authority given by the proposed amendment 
would seem to be limited by the Bill of Rights and the 
Fourteenth Amendment.
    The text of the proposed amendment does not purport to 
exempt the exercise of the power conferred from the constraints 
of the First Amendment or any other constitutional guarantee of 
individual rights. Read literally, the amendment would not 
alter the result of the decisions in Eichman or Johnson, 
holding that the exercise of congressional and state power to 
protect the symbol of the flag is subject to First and 
Fourteenth Amendment limits. Rather, by its literal text, it 
would simply and unnecessarily make explicit the governmental 
power to legislate in this area that always has been assumed to 
exist.
    To give the amendment meaning, then, we must read into it, 
consistent with its sponsors' intent, at least some restriction 
on the First Amendment freedoms identified in the Supreme 
Court's flag decisions. What is difficult, and profoundly so, 
is identifying just how much of the First Amendment and the 
rest of the Bill of Rights is superseded by the amendment. Once 
we have departed, by necessity, from the amendment's text, we 
are in uncharted territory, and faced with genuine uncertainty 
as to the extent to which the amendment will displace the 
protections enshrined in the Bill of Rights.
    We do not know, for instance, whether the proposed 
amendment is intended, or would be interpreted to authorize 
enactments that otherwise would violate the due process ``void 
for vagueness'' doctrine. In Smith v. Goguen, 415 U.S. 566 
(1974), the Court reversed the conviction of a defendant who 
had sewn a small flag on the seat of his jeans, holding that a 
state statute making it a crime to ``treat contemptuously'' on 
the flag was unconstitutionally vague. We cannot be certain 
that the vagueness doctrine applied in Smith would limit as 
well prosecutions brought under laws enacted pursuant to the 
proposed amendment.
    Nor is this a matter of purely hypothetical interest, 
unlikely to have much practical import. The amendment, after 
all, authorizes laws that prohibit ``physical desecration'' of 
the flag, and ``desecration'' is not a term that readily admits 
of objective definition. On the contrary, ``desecrate'' is 
defined to include such inherently subjective meanings as 
``profane'' and even ``treat contemptuously'' itself. Thus, a 
statute tracking the language of the amendment and making it a 
crime to ``physically desecrate'' an American flag would suffer 
from the same defect as the statute at issue in Smith: it would 
``fail to draw reasonably clear lines between the kinds of 
nonceremonial treatment that are criminal and those that are 
not.'' 415 U.S. at 574.
    The term ``flag of the United States'' is similarly 
``unbounded,'' id. at 575, and by itself provides no guidance 
as to whether it reaches unofficial as well as official flags, 
or pictures or representations of flags created by artists as 
well as flags sold or distributed for traditional display. 
Indeed, testifying in favor of a similar amendment in 1989, 
then-Assistant Attorney General William Barr acknowledged that 
the word ``flag'' is so elastic that it can be stretched to 
cover everything from cloth banners with the characteristics of 
the official flag, as defined by statute, to ``any picture or 
representation'' of a flag, including ``posters, murals, 
pictures, [and] buttons''. ``Hearings on S. 1338, H.R. 2978, 
and S.J. Res. 180 Before the Senate Comm. on the Judiciary,'' 
101st Cong., 1st Sess. 82-85 (1989) [``1989 Hearings'']. And 
while a statute enacted pursuant to the amendment could attempt 
a limiting definition, it need not do so; the amendment would 
authorize as well a statute that simply prohibited desecration 
of ``any flag of the United States.'' Again, such a statute 
would implicate the vagueness doctrine applied in Smith, and 
raise in any enforcement action the question whether the 
empowering amendment overrides due process guarantees.
    Even if we are prepared to assume that the proposed 
amendment would operate on the First Amendment alone, important 
questions about the amendment's scope remain. Specifically, we 
still face the question whether the powers to be exercised 
under the amendment would be freed from all, or only some, 
First Amendment constraints, and, if the latter, how we will 
know which constraints remain applicable.
    An example may help to illuminate the significance of this 
issue. In R.A.V. v. City of St. Paul, 112 S. Ct. 2538, decided 
in 1992, the Supreme Court held that even when the First 
Amendment permits regulation of an entire category of speech or 
expressive conduct, it does not necessarily permit the 
government to regulate a subcategory of the otherwise 
proscribable speech on the basis of its particular message. A 
government acting pursuant to the proposed amendment would be 
able to prohibit all flag desecration, but, if R.A.V. retains 
its force in this context, a government could not prohibit only 
those instances of flag desecration that communicated a 
particularly disfavored view; statutes making it a crime--or an 
enhanced penalty offense--to ``physically desecrate a flag of 
the United States in opposition to United States military 
actions,'' for instance, would presumably remain impermissible.
    This result obtains, of course, if and only if the proposed 
amendment is understood to confer powers that are limited by 
the R.A.V. principle. If, on the other hand, the proposed 
amendment overrides the whole of the First Amendment, or 
overrides some select though unidentified class of principles 
within which R.A.V. falls, then there remains no constitutional 
objection to the hypothetical statute posited above. This is a 
distinction that makes a difference, as I hope this example 
shows, and it should be immensely troubling to anyone 
considering the amendment that its text leaves us with no way 
of knowing whether the rule of R.A.V.--or any other First 
Amendment principle--would limit governmental action if the 
amendment became part of the Constitution.
    I will make only one last point with respect to the 
uncertain scope of the proposed amendment. It is possible that 
conferral of an undelineated power to cut into the Bill of 
Rights might be lesser concern if Congress alone were so 
empowered. But it must be remembered that the amendment at 
issue here also grants the same power to fifty different states 
and an uncertain number of local governments. That raises, of 
course, the interpretive question of whether state legislatures 
acting under the amendment would remain bound by state 
constitutional free speech guarantees, or whether the proposed 
amendment would superseds state as well as federal 
constitutional provisions. On a more practical level, it 
increases, by at least fifty times, the risk that unduly 
restrictive or arbitrary legislation may be enacted at some 
point in the near or distant future, and it virtually 
guarantees a patchwork of very different state responses. Under 
these circumstances, Congress has a special obligation to make 
clear the dimensions of the power the amendment would confer.
    I have real doubts about whether these interpretive 
concerns could be resolved fully by even the most artful of 
drafting. In my view, any effort to constitutionalize an 
``exception'' to the Bill of Rights necessarily will produce 
significant interpretive difficulties and uncertainty, as the 
courts attempt to reconcile a specific exception with the 
general principles that remain. But even assuming, for the 
moment, that all of the interpretive difficulties of this 
amendment could be cured, it would remain an ill-advised 
departure from a constitutional history marked by a deep 
reluctance to amend our most fundamental law.
    The Bill of Rights was ratified in 1792. Since that time, 
over two hundred years ago, the Bill of Rights has never once 
been amended. And this is no historical accident, nor a product 
only of the difficulty of the amendment process itself. Rather, 
our historic unwillingness to tamper with the Bill of Rights 
reflects a reverence for the Constitution that is both entirely 
appropriate and fundamentally at odds with turning that 
document into a forum for divisive political battles.
    The Framers themselves understood that resort to the 
amendment process was to be sparing and reserved for ``great 
and extraordinary occasions.'' The Federalist No. 49, at 314 
(James Madison) (Clinton Rossiter ed., 1961). James Madison 
warned against using the amendment process as a device for 
correcting every perceived constitutional defect--a practice 
that could not help but undermine the role of the Supreme Court 
See id. at 314. Of particular interest here, Madison objected 
especially to amendment on issues that inflamed public passion, 
fearing that such actions might threaten ``the constitutional 
equilibrium of the government.'' Id. at 315-17. See also ``1989 
Hearings'' at 720-23 (statement of Professor Henry Paul 
Monaghan, Columbia University School of Law).
    The proposed amendment cannot be reconciled with this 
fundamental and historic understanding of the integrity of the 
Constitution. I think perhaps Charles Fried, who served with 
distinction as Solicitor General under President Reagan, made 
the point best when he testified against a similar proposed 
amendment in 1990:

          The flag, as all in this debate agree, symbolizes our 
        nation, its history, its values. We love the flag 
        because it symbolizes the United States; but we must 
        love the Constitution even more, because the 
        Constitution is not a symbol. It is the thing itself. 
        ``Hearing Before the Senate Comm. on the Judiciary,'' 
        101st Cong., 2d Sess. 110 (1990).

    We come to this discussion at a time when peace among 
ourselves seems threatened, and national unity an elusive goal. 
The unity we seek, however, should be of the kind that is 
freely chosen, because that is the only kind that matters and 
the only kind that will endure. Americans are free today to 
display the flag respectfully, to ignore it entirely, or to use 
it as an expression of protest or reproach. By overwhelming 
numbers, Americans have chosen the first option, and display 
the flag proudly. And what gives this gesture its unique 
symbolic meaning is the fact that the choice is freely made, 
uncoerced by the government. Were it otherwise--were, for 
instance, respectful treatment of the flag the only choice 
constitutionally available--then the respect paid the flag by 
millions of Americans would mean something different and 
perhaps something less.
            Sincerely,
                                                  Walter Dellinger.
                            DISSENTING VIEWS

    We strongly oppose H.J. Res. 79, which would--for the first 
time in our Nation's history--modify the Bill of Rights to 
limit our freedom of expression. Although the motives of the 
proposition's supporters are well-intentioned, we believe that 
adopting H.J. Res. 79 is wrong as a matter of principle, wrong 
as a matter of precedent, and wrong as a matter of practice.
    H.J. Res. 79 responds to a perceived problem--flag 
burning--that is fortunately a rare occurrence in American life 
today.\1\ Moreover, most incidents of flag burning can be 
successfully prosecuted today under laws relating to breach of 
peace, thefts, vandalism and trespassing--all fully within 
current constitutional constraints. (Indeed, constitutional 
scholars agree that legislation employing the ``fighting 
words'' exception to the first amendment could criminalize the 
objectionable conduct and withstand constitutional 
challenge.\2\)
    \1\ Studies indicate that in all of American history from the 
adoption of the United States flag in 1777 through Texas v. Johnson, 
491 U.S. 397 (1989), there have only been 45 reported incidents of flag 
burning. See Robert J. Goldstein, ``Two Centuries of Flagburning in the 
United States,'' 163 Flag Bull. 65 (1995). Johnson upheld the Texas 
Court of Criminal Appeals finding that the Texas flag desecration law 
was unconstitutional as applied in that it was a ``content-based'' 
restriction. Subsequent to Johnson, Congress enacted the Flag 
Protection Act in an effort to craft a more content-neutral law. In 
United States v. Eichman, 496 U.S. 310 (1990), the Court overturned 
several flag burning convictions brought under the new law, finding 
that the federal law continued to be principally aimed at limiting 
symbolic speech.
    \2\ See ``Hearing on H.J. Res. 79, Proposing an Amendment to the 
Constitution of the United States before the Subcom. on Constitution of 
the House Comm. on the Judiciary,'' 104th Cong., 1st Sess. (May 24, 
1995) (forthcoming) [hereinafter, ``1995 House Judiciary Hearings''] 
(statement of Bruce Fein at 1) (``Flag desecrations when employed as 
``fighting words'' or when intended and likely to incite a violation of 
law remain criminally punishable under the Supreme Court precedents in 
Chaplinsky v. New Hampshire (1942) and Brandenburg v. Ohio (1969)''); 
``Hearings on Statutory and Constitutional Responses to the Supreme 
Court Decision in Texas v. Johnson, 101st Cong., 1st Sess. (July 13, 
18, 19 and 20, 1989) (Serial No. 24) (statement of Laurence Tribe at 
112 and 113 (``when flag desecration is * * * an incitement [to 
violence] it may be prosecuted as such * * * Every State already has 
authority to enact a criminal statute directed specifically against 
those assaults upon the flag that are likely to cause an immediate and 
serious physical disturbance among onlookers.'')
---------------------------------------------------------------------------
    By embedding a principle prohibiting flag desecration into 
the Constitution, we will have elevated the flag over other 
cherished symbols, including not only national symbols such as 
the Declaration of Independence and Statue of Liberty, but 
religious symbols such as crosses and Bibles. Clinton Bolick, 
testifying on behalf of the Institute for Justice, asks, ``[b]y 
what perverse principle will we have a society in which burning 
a flag is forbidden, but in which burning a cross is 
permitted?''\3\
    \3\ Id. (statement of Clinton Bolick at 3).
---------------------------------------------------------------------------
    Ironically, H.J. Res. 79 will not even achieve the 
sponsors' stated purposes--protecting the American flag and 
honoring America's veterans. History has taught us that 
restrictive legislation will sadly result in more flag burning 
in an effort to protest the law itself,\4\ and a vaguely worded 
constitutional amendment such as H.J. Res. 79 may cause such 
efforts to increase many times over. If we truly want to honor 
our veterans, it would be far more constructive for Congress to 
reconsider eliminating cost-of-living increases and health care 
benefits previously promised to veterans.\5\ Thus, while we 
condemn those who would dishonor our Nation's flag, we believe 
that rather than protecting the flag, H.J. Res. 79 will merely 
serve to weaken the Constitutional protection of free 
expression.
    \4\ In his extensive survey of the history of American flag 
desecration law, Robert Goldstein writes that ``[a]lthough the purpose 
of the [Flag Protection Act adopted by Congress in 1968] was to 
supposedly end flag burnings, its immediate impact was to spur perhaps 
the largest single wave of such incidents in American history.'' Robert 
J. Goldstein, ``Saving `Old Glory' '': The History of the American Flag 
Desecration Controversy'' 215 (1995).
    \5\ See H. Con. Res. 67, 104th Cong., 1st Sess.
                  Importance of Freedom of Expression

    Freedom of expression is one of the preeminent human rights 
and is central to fostering all other forms of freedom. 
Professor Emerson notes that since as early as the Renaissance, 
free and open expression has been considered to be an essential 
element of human fulfillment: ``They theory [of free 
expression] grew out of an age that was awakened and 
invigorated by the idea of a new society, in which man's mind 
was free, his fate determined by his own powers of reason, and 
his prospects of creating a rational and enlighten civilization 
virtually unlimited.'' \6\
    \6\ Thomas I. Emerson, ``Toward a General Theory of the First 
Amendment,'' 72 Yale L.J., 877, 886 (1963).
---------------------------------------------------------------------------
    Freedom of expression also provides an important safety 
valve for society. Professor Greenwalt writes that ``those who 
are resentful because their interests are not accorded fair 
weight, and who may be doubly resentful because they have not 
even had a chance to present those interests, may seek to 
attain by radical changes in existing institutions what they 
have failed to get from the institutions themselves. Thus 
liberty of expression, though often productive of divisiveness, 
may contribute to social stability.'' \7\
    \7\ Greenwalt, Speech and Crime, A.B.F. Res.J 645, 672-3 (1980). 
See also Rotunda, ``Treatise on Constitutional Law: Substance and 
Procedure'' Sec. 20.6 at 18 (2d ed. 1992).
---------------------------------------------------------------------------
    Freedom of expression also serves as an important tool in 
checking the abuse of powers by public officials. Professor 
Blasi has noted that this ``checking function'' should be 
accorded a level of protection higher than that given any other 
type of communication because ``the particular evil of official 
misconduct is of a special order.'' \8\
    \8\ See Redish, ``The Value of Free Speech,'' 130 U. Penn. L.Rev., 
591, 611 (1982).
---------------------------------------------------------------------------
    Perhaps the most important function served by a system of 
free expression is that it allows for free and open exchange of 
thoughts--referred to by Justice Holmes as the ``marketplace of 
ideas.'' \9\ In a 1644 speech before the English Parliament 
critizing censorship laws, Milton articulated the notion that 
free expression helps to prevent human error through ignorance:
    \9\ Justice Holmes articulated his ``marketplace of ideas'' theory 
of free speech in his dissent in Abrams v. United States, 250 U.S. 616, 
630 (1919): ``[T]he ultimate good desired is better reached by free 
trade in ideas * * * the best test of truth is the power of thought to 
get it accepted in the competition in the market.''

          [T]hough all the winds of doctrine were let loose to 
        play upon the earth, so truth be in the field, we do 
        injuriously, by licensing and prohibiting, to misdoubt 
        her strength. Let her and falsehood grapple, whoever 
        knew truth put to the worse in a free and open 
        encounter? \10\
    \10\ J. Milton, ``Areopagitica, A Speech for the Liberty of 
Unlicensed Printing to the Parliament of England'' (1644).

    In his 1859 essay ``On Liberty,'' John Stuart Mill further 
expanded upon this vision when he recognized the public good 
and enlightenment which results from the free exchange of 
---------------------------------------------------------------------------
ideas:

          First, if any opinion is compelled to silence, that 
        opinion for aught we can certainly know, be true * * * 
        Secondly, though his silenced opinion be in error, it 
        may, and very commonly does, contain a portion of the 
        truth * * * Thirdly, even if the received opinion be 
        not only true but the whole truth; unless it is 
        suffered to be and actually is, vigorously and 
        earnestly contested, it will by most of those who 
        receive it, be held in the manner of a prejudice.\11\
    \11\ J.S. Mill, ``On Liberty'' Ch. II. (1859).

    The American system of government is itself premised on 
freedom of expression. Professor Emerson notes: ``Once one 
accepts the premise of the Declaration of Independence--that 
governments derive `their just powers from the consent of the 
governed'--it follows that the governed must, in order to 
exercise their right of consent, have full freedom of 
expression both in forming individual judgments and in forming 
the common judgments.'' \12\
    \12\ Thomas I. Emerson, ``Toward a General Theory of the First 
Amendment,'' supra note 6 at 883.
    The founding fathers recognized the difficulties in 
maintaining a system of free expression against the ``tyranny 
of the majority.'' In the Federalist Papers James Madison 
expressed concern as to the unfettered power of the majority: 
``By a faction I understand a number of citizens, whether 
amounting to a majority or a minority of the whole who are * * 
* adverse to the rights of other citizens, or to the permanent 
and aggregate interests of the community.''\13\ It is for these 
reasons that the Constitution not only explicitly protected 
freedom of expression,\14\ but created a judiciary possessing 
the power of review over all legislative and executive action. 
These twin safeguards--a written constitution and an 
independent judiciary--have served to foster in this country 
the freest society in human history.
    \13\ The Federalist No. 10 (J. Madison) at 57 (J. Cooke ed. 1961).
    \14\ Indeed the framers chose to include freedom of speech in the 
first amendment of the Bill of Rights, and wrote its protection in 
absolute terms: ``Congress shall make no law * * * abridging freedom of 
speech * * *''. The strictness of the language is in contrast with the 
fourth amendment, for example which prohibits only ``unreasonable 
searches and seizures.''
---------------------------------------------------------------------------

             H.J. Res. 79 is Wrong as a Matter of Principle

    Unfortunately, H.J. Res. 79 detracts from our system of 
unfettered political expression. The true test of any nation's 
commitment to freedom of expression lies in its ability to 
protect unpopular expression, such as flag desecration. In 1929 
Justice Holmes wrote that it was the most imperative principle 
of our constitution that it protects not just freedom for the 
thought and expression we agree with, but ``freedom for the 
thought we hate.'' \15\ As Justice Jackson so eloquently wrote 
in 1943:
    \15\ United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, 
J., dissenting).

          Freedom to differ is not limited to things that do 
        not matter much. That would be a mere shadow of 
        freedom. The test of its substance is the right to 
        differ as to things that touch the heart of the 
        existing order. 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.\16\
    \16\ West Virginia Board of Education v. Barnette, 319 U.S. 624, 
642 (1943).

    And there can be no doubt that ``symbolic speech'' relating 
to the flag falls squarely within the ambit of traditionally 
protected speech. Our nation was born in the dramatic symbolic 
speech of the Boston Tea Party, and our courts have long 
recognized that expressive speech associated with the flag is 
protected speech under the first amendment.
    Beginning in 1931 with Stromberg v. California \17\ (state 
statute prohibiting the display of a ``red flag'' overturned) 
and continuing through the mid-1970's with Smith v. Goguen\18\ 
and Spence v. Washington \19\ (overturning convictions 
involving wearing a flag patch and attaching a peace sign to a 
flag), the Supreme Court has consistently recognized that flag-
related expression is entitled to constitutional protection. 
Indeed, by the time Gregory Johnson was prosecuted for burning 
a U.S. flag outside of the Republican Convention in Dallas, the 
State of Texas readily acknowledged that Johnson's conduct 
constituted ``symbolic speech'' subject to protection under the 
first amendment.\20\ Those who seek to justify H.J. Res. 79 on 
the grounds that flag desecration does not constitute 
``speech'' are therefore denying decades of well-understood 
court decisions.\21\
    \17\ 283 U.S. 359 (1931). Absent this decision, a State could 
theoretically have prevented its citizens from displaying the U.S. 
flag.
    \18\ 415 U.S. 94 (1972).
    \19\ 418 U.S. 405 (1974).
    \20\ Texas v. Johnson, supra note 1.
    \21\ See also, Note, ``The Supreme Court--Leading Cases, 103 Harv. 
L.Rev. 137, 152 (1989) (``the majority opinion [in Johnson] is a 
relatively straightforward application of traditional first amendment 
jurisprudence''); Sheldon H. Nahmod,'' The Sacred Flag and the First 
Amendment, 66 Ind. L.J. 511, 547 (1991) (``Johnson is an easy case if 
well-established first amendment principles are applied to it'').
    While we deplore the burning of an American flag in hatred, 
we recognize that it is our allowing of this conduct that 
reinforces the strength of the Constitution. As one federal 
court wrote in a 1974 flag burning case, ``the flag and that 
which it symbolizes is dear to us, but not so cherished as 
those high moral, legal, and ethical precepts which our 
Constitution teaches.'' \22\ The genius of the Constitution 
lies in its indifference to a particular individual's cause. 
The fact that flag burners are able to take refuge in the first 
amendment means that every citizen can be assured that the Bill 
of Rights will be available to protect his or her rights and 
liberties should the need arise.
    \22\ U.S. ex rel Radich v. Criminal Court of N.Y., 385 F.Supp. 165, 
184 (1974).
---------------------------------------------------------------------------
    H.J. Res. 79 will also open the door to selective 
prosecution based purely on political beliefs. When Peter 
Zenger was charged with ``seditious libel'' in the very first 
case involving freedom of speech on American soil, his lawyer, 
James Alexander warned:

          The abuses of freedom of speech are the excrescences 
        of Liberty. They ought to be suppressed; but whom dare 
        we commit the care of doing it? An evil Magistrate, 
        entrusted with power to punish Words, is armed with a 
        Weapon the most destructive and terrible. Under the 
        pretense of pruning the exuberant branches, he 
        frequently destroys the tree.\23\
    \23\ Philadelphia Gazette, Nov. 17, 1737, quoted in Levy, ``Legacy 
of Suppression'' 135 (1960).

    The history of the prosecution of flag desecration in this 
country bears out these very warnings. The overwhelming 
majority of flag desecration cases have been brought against 
political dissenters, while commercial and other forms of flag 
desecration has been almost completely ignored. An article in 
``Art in America'' points out that during the Vietnam War 
period, those arrested for flag desecration were ``invariably 
critics of national policy, while `patriots' who tamper with 
the flag are overlooked.'' \24\ Whitney Smith, director of the 
Flag Research Center, has further observed that commercial 
misuse of the flag was ``more extensive than its misuse by 
leftists or students, but this is overlooked because the 
business interests are part of the establishment.'' \25\
    \24\ See Robert J. Goldstein, ``Saving Old Glory: The History of 
the American Flag Desecration Controversy,'' supra note 4 at 154.
    \25\ Id.
    Almost as significant as the damage H.J. Res. 79 would do 
to our own Constitution, is the harm it will inflict on our 
international standing in the area of human rights. 
Demonstrators who cut the communist symbols from the center of 
the East German and Romanian flags prior to the fall of the 
Iron Curtain committed crimes against their country's laws, yet 
freedom-loving Americans justifiably applauded these brave 
actions. If we are to maximize our moral stature in matters of 
human rights, it is therefore, essential that we remain fully 
open to unpopular dissent, regardless of the form it takes.\26\
    \26\ To illustrate, when the former Soviet Union adopted 
legislation in 1989 making it a criminal offense to ``discredit'' a 
public official, Communist officials sought to defend the legislation 
by relying on, among other things, the United States flag desecration 
statute. See Rotunda, ``Treatise on Constitutional Law: Substance and 
Procedure,'' supra note 7, Sec. 20.49 at 352.
---------------------------------------------------------------------------

             H.J. Res. 79 is Wrong as a Matter of Precedent

    Adoption of H.J. Res. 79 will also create a number of 
dangerous precedents in our legal system. The Resolution will 
encourage further departures from the first amendment and 
diminish respect for our Constitution.
    If we approve H.J. Res. 79, it is unlikely to be the last 
time Congress acts to restrict our first amendment liberties. 
As President Reagan's Solicitor General Charles Fried 
testified:

          Principles are not things you can safely violate 
        ``just this once.'' Can we not just this once do an 
        injustice, just this once betray the spirit of liberty, 
        just this once break faith with the traditions of free 
        expression that have been the glory of this nation? Not 
        safely; not without endangering our immortal soul as a 
        nation. The man who says you can make an exception to a 
        principle, does not know what a principle is; just as 
        the man who says that only this once let's make 2+2=5 
        does not know what it is to count.\27\
    \27\ ``Measures to Protect the American Flag, Hearing before the 
Senate Comm. on the Judiciary,'' 101st Cong., 2d Sess. (June 21, 1990) 
(Serial No. J-101-77) (statement of Charles Fried at 113).

    Adoption of H.J. Res. 79 will also trivialize our 
Constitution.\28\ If we begin to second guess the courts' 
authority concerning matters of free speech, we will not only 
be carving an awkward exception into a document designed to 
last for the ages, but will be undermining the very structure 
created under the Constitution to protect our rights. This is 
why Madison warned against using the amendment process to 
correct every perceived constitutional defect, particularly 
concerning issues which inflame public passion.\29\ 
Conservative legal scholar Bruce Fein emphasized this concern 
when he testified:
    \28\ Inserting the term ``desecration'' into the Constitution would 
in and of itself seem highly inappropriate. Webster's New World 
Dictionary defines ``desecrate'' as ``to violate the sacredness of,'' 
and in turn defines ``sacred'' as ``consecrated to a god or God; holy; 
or having to do with religion.'' The introduction of these terms could 
create a significant tension within our constitutional structure, in 
particular with the religion clause of the first amendment.
    \29\ Legal philosopher Lon Fuller also highlighted this very 
problem over four decades ago:

      We should resist the temptation to clutter up [the 
      constitution] with amendments relating to substantive 
      matters. [In that way we avoid] * * * the obvious unwisdom 
      of trying to solve tomorrow's problems today. But [we also 
      escape the] more insidious danger [of] the weakening effect 
      [such amendments] have on the moral force of the 
---------------------------------------------------------------------------
      Constitution itself.

L. Fuller, ``American Legal Philosophy at Mid-Century,'' 6 J.L. Ed. 
457, 465 (1954), cited in ``Hearings on Proposed Flag Desecration 
Amendment before the Subcomm. on Constitution of the Senate Comm. on 
the Judiciary,'' 104th Cong., 1st Sess. (June 6, 1995) (forthcoming) 
[hereinafter, ``1995 Senate Judiciary Hearings''] (statement of Gene R. 
Nichol).

          While I believe the Johnson and Eichman decisions 
        were misguided, I do not believe a Constitutional 
        amendment would be a proper response * * * to enshrine 
        authority to punish flag desecrations in the 
        Constitution would not only tend to trivialize the 
        Nation's Charter, but encourage such juvenile temper 
        tantrums in the hopes of receiving free speech 
        martyrdom by an easily beguiled media * * * it will 
        lose that reverence and accessibility to the ordinary 
        citizen if it becomes cluttered with amendments 
        overturning every wrongheaded Supreme Court 
        decision.\30\
    \30\ ``1995 House Judiciary Hearings'' supra note 2 (statement of 
Bruce Fein at 1-2).
---------------------------------------------------------------------------

             h.j. res. 79 is wrong as a matter of practice

    As a practical matter, H.J. Res. 79 is too loosely drafted 
and may well open up a ``Pandora's Box'' of litigation. The 
terms of the resolution are so open-ended that they give us no 
guidance as to its intended Constitutional scope or parameter. 
While the amendment's supporters claim they are merely drawing 
a line between legal and illegal behavior, in actuality, they 
are granting the state and federal governments open-ended 
authority to prosecute dissenters who use the flag in a manner 
deemed inappropriate.
    The Committee debate highlights the fact that there is 
little understanding or consensus concerning the meaning of 
such crucial terms as ``desecration'' and ``flag of the United 
States.'' Depending on the state law adopted, ``desecration'' 
could apply to cancelling flag postage stamps or use of the 
flag by Olympic athletes. The term ``flag of the United 
States'' could include underwear from the ``Tommy Hilfiger'' 
collection as well as a Puerto Rican municipal flag including a 
likeness of the U.S. flag.\31\ And in our view it is 
insufficient to respond to these concerns by asserting that the 
courts can easily work out the meaning of the terms in the same 
way that they have given meaning to other terms in the Bill of 
Rights, such as ``due process.'' Unlike the other provisions of 
the Bill of Rights, H.J. Res. 79 represents an unchartered 
restriction of our rights and liberties, rather than a back-up 
mechanism to prevent the government from usurping our rights.
    \31\ Id. (transcript at 67, statement of Representative Serrano). 
See also, Rotunda, ``Treatise on American Constitutional Law: Substance 
and Procedure,'' supra note 7, Sec. 20.49 at Sec. 90 (If we adopt laws 
outlawing flag desecration ``there will be future problems defining 
what is a flag. Will it be a crime for someone to burn a flag? Or 
burning fireworks in the shape of an American flag? May a movie 
director (filming Francis Scott Key watching Fort McHenry) order that 
the American flag of 1812 be shot at and otherwise defaced? Will it be 
a crime for the post office to cancel (i.e., deface) a stamp that has 
on it a copy of the American flag? If a flag design is on a birthday 
cake, will it be a federal crime to light the birthday candles on the 
cake? Will cutting the cake deface it? Is it defacing the flag to 
display it upside down?'').
---------------------------------------------------------------------------
    The Resolution's sponsors also appear to have reached no 
consensus as to its Constitutional scope or breadth. Although 
Constitution Subcommittee Chairman Canady stated that the 
amendment would simply ``restore the status quo before the 
Supreme Court ruled in 1989,'' he later asserted that the 
Resolution would allow the states to criminalize wearing 
clothing with the flag on it. Yet this latter assertion is in 
direct contravention of the Court's 1972 decision in Smith v. 
Goguen,\32\ which held that Massachusetts could not prosecute a 
person for wearing a small cloth replica of the flag on the 
seat of his pants. The fact of the matter is that H.J. Res. 79 
gives us no guidance whatsoever as to what if any provisions of 
the first amendment, the Bill of Rights, or the Constitution in 
general that it is designed to overrule.\33\ A provision of 
such untested meaning and scope as H.J. Res. 79 will inevitably 
lead to confusing and inconsistent law enforcement and 
adjudication, and it will likely be decades before the court 
system could even begin to sort out the problems.
    \32\ 415 U.S. 95 (1972) (Massachusetts statute held to be 
unconstitutionally ``void for vagueness''). See also, Spence v. 
Washington, 418 U.S. 405 (1974) (overturning conviction for attaching 
removable tape in the form of a peace sign to a flag).
    \33\ Since H.J. Res. 79 is drafted to modify the entire 
Constitution, rather than any portion of the first amendment, it is 
unclear whether and to what extent it will supersede a number of 
Constitutional provisions. At a minimum, the Resolution raises very 
troubling questions regarding flag desecration laws which would 
otherwise be (i) ``void for vagueness'' in violation of the first and 
fifth amendment (see e.g., Smith v. Goguen); (ii) overbroad under the 
first amendment; or (iii) selectively prosecuted under the 14th 
amendment. In addition, the Resolution may also conflict with 
Constitutional provisions relating to the least restrictive 
alternatives test and religious protection (first amendment), search 
and seizure (fourth amendment), due process and self-incrimination 
(fifth amendment), cruel and unusual punishment (eighth amendment), the 
supremacy clause (Article VI, Section 2), and the speech and debate 
clause (Article I, Section 6). See e.g., ``1995 Senate Judiciary 
Hearings,'' supra note 29 (statement of Walter Dellinger); William Van 
Alstyne, ``Stars and Stripes and Silliness Forever,'' Legal Times at 34 
(October 2, 1989).
    In an effort to cure many of the defects in the writing of 
H.J. Res. 79, at the Committee markup Representative Reed 
offered an amendment which would have specified that the 
Resolution would only authorize laws prohibiting the ``burning, 
trampling, or rending'' of the flag. The Reed amendment would 
have also allowed Congress--the traditional designator of our 
national symbols\34\--to adopt a single uniform definition of 
the term ``U.S. flag'', rather than leaving the definition to 
50 different State legislatures and permit significant overlap 
and confusion.\35\ This amendment, which would have allowed the 
States and Congress to outlaw flag burning pursuant to a more 
narrow and constrained set of laws, was defeated.
    \34\ See 4 USC Sec. 1 et seq.
    \35\ In his testimony on behalf of the Administration, Assistant 
Attorney General Walter Dellinger stated:

      It is possible that conferral of an undelineated power to 
      cut into the Bill of Rights might be of lesser concern if 
      Congress alone were so empowered. But it must be remembered 
      that the amendment at issue here also grants the same power 
      to the fifty different states and an uncertain number of 
      local governments. That raises, of course, the interpretive 
      question of whether State legislatures acting under the 
      amendment would remain bound by state constitutional free 
      speech guarantees, or whether the proposed amendment would 
      supersede state as well as constitutional provisions. On a 
      more practical level, it increases, by at least 50 times, 
      the risk that unduly or arbitrary legislation may be 
      enacted at some point in the near or distant future, and it 
      virtually guarantees a patchwork of very different state 
---------------------------------------------------------------------------
      responses.

``1995 Senate Judiciary Committee Hearings,'' supra note 29 at 8-9.
                               conclusion

    Adoption of H.J. Res. 79 will diminish our commitment to 
untrammeled freedom of expression under our constitutional 
system. We believe we are too secure as a nation to need to 
risk our commitment to freedom by endeavoring to legislate 
patriotism. As the Court wrote in West Virginia Board of 
Education v. Barnette:

          [The] ultimate futility of * * * attempts to compel 
        coherence is the lesson of every such effort from the 
        Roman drive to stamp out Christianity as a disturber of 
        its pagan unity, the Inquisition, as a means to 
        religious and dynastic unity, the Siberian exiles as a 
        means to Russian unity, down to the last failing 
        efforts of our present totalitarian enemies. Those who 
        begin coercive elimination of dissent soon find 
        themselves exterminating dissenters. Compulsory 
        unification of opinion achieves only the unanimity of 
        the graveyard.\36\

    \36\ 319 U.S. 624, 641 (1943).

    If we tamper with our Constitution because of the antics of 
a handful of obnoxious and thoughtless people we will have 
reduced the role of the flag as an emblem of freedom, not 
enforced it. We will not go on record as supporting a proposal 
which will limit the freedom of expression of the American 
people no matter how great the provocation, or how noble the 
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motives of its proponents.

                                   John Conyers, Jr.
                                   Pat Schroeder.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Rick Boucher.
                                   Jack Reed.
                                   Jerrold Nadler.
                                   Bobby Scott.
                                   Melvin L. Watt.
                                   Xavier Becerra.
                                   Jose E. Serrano.
                                   Zoe Lofgren.