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104th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 104-151
June 22, 1995.--Referred to the House Calendar and ordered to be
Mr. Hyde, from the Committee on the Judiciary, submitted the following
R E P O R T
[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
Purpose and Summary.............................................. 2
Background and Need for the Resolution........................... 2
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
(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
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
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.
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
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.
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. Bryant (TN)
2. A motion to favorably report H.J. Res. 79 was agreed to
by a rollcall vote of 18-12.
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. Bryant (TN)
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
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:
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.
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.
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
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
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
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
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.
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
\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
\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
\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
\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
\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
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
\15\ United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes,
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
\16\ West Virginia Board of Education v. Barnette, 319 U.S. 624,
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
\17\ 283 U.S. 359 (1931). Absent this decision, a State could
theoretically have prevented its citizens from displaying the U.S.
\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,
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.
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
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
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.
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
\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
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
``1995 Senate Judiciary Committee Hearings,'' supra note 29 at 8-9.
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
\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
motives of its proponents.
John Conyers, Jr.
Howard L. Berman.
Melvin L. Watt.
Jose E. Serrano.