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 2d Session                                                     105-298



               September 1, 1998.--Ordered to be printed


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

                              R E P O R T

                             together with

                             MINORITY VIEWS

              [To accompany S.J. Res. 40 and H.J. Res. 54]

    The Committee on the Judiciary, to which was referred the 
joint resolution (S.J. Res. 40 and H.J. Res. 54) proposing an 
amendment to the Constitution of the United States authorizing 
Congress to prohibit the physical desecration of the flag of 
the United States, having considered the same, reports 
favorably thereon, and recommends that the joint resolution do 

  I. Summary..........................................................2
 II. Legislative history..............................................3
III. Discussion.......................................................5
 IV. Vote of the Committee...........................................42
  V. Text of S.J. Res. 40............................................42
 VI. Cost estimate...................................................42
VII. Regulatory impact statement.....................................43
VIII.Minority views of Senators Leahy, Kennedy, Kohl, Feingold,        
     Durbin, and Torricelli..........................................44
 IX. Minority views of Senator Biden.................................68
  X. Changes in existing law.........................................75

                               I. SUMMARY

    The purpose of Senate Joint Resolution 40 and its identical 
House companion measure House Joint Resolution 54 is to restore 
to Congress the authority to enact a statute protecting the 
flag of the United States from physical desecration. The 
resolution reads as follows: ``The Congress shall have power to 
prohibit the physical desecration of the flag of the United 
    The American people revere the flag of the United States as 
a unique symbol of our Nation, representing our commonly held 
belief in liberty and justice. Regardless of our ethnic, 
racial, or religious diversity, the flag represents our oneness 
as a people. As Supreme Court Justice John Paul Stevens has 

          [A] country's flag is a symbol of more than 
        ``nationhood and national unity.'' It also signifies 
        the ideas that characterize the society that has chosen 
        that emblem as well as the special history that has 
        animated the growth and power of those ideas * * *. So 
        it is with the American flag. It is more than a proud 
        symbol of the courage, the determination, and the gifts 
        of a nation that transformed 13 fledgling colonies into 
        a world power. It is a symbol of freedom, of equal 
        opportunity, of religious tolerance, and of goodwill 
        for other peoples who share our aspirations.

Texas v. Johnson, 491 U.S. at 437 (dissenting).

    To this end, the Federal Government, the District of 
Columbia, and some 48 States adopted laws preventing physical 
desecration of the flag. In 1989, however, the Supreme Court 
broke with over 200 years of precedent and held that flag 
desecration as a means of public protest is an act of free 
expression protected by the first amendment. See Texas v. 
Johnson, 491 U.S. 397 (1989). That decision effectively 
invalidated the laws of 48 States and the District of Columbia 
protecting the flag from such abuse. Approximately 1 year 
later, in a 5-to-4 decision in United States v. Eichman, 496 
U.S. 310 (1990), the Court struck down the Federal Flag 
Protection Act as being similarly inconsistent with the first 
    As a result, a widespread grassroots organization has 
called upon Congress to initiate proceedings to pave the way 
for the adoption of a constitutional amendment permitting 
Congress to protect the flag from physical desecration. This 
movement has developed because the flag represents the common 
political bond shared by this Nation's people. Whatever our 
differences of party, race, religion, ethnicity, economic 
status, or geographic region, we are united as Americans. That 
unity is symbolized by the American flag. As the visible 
embodiment of our Nation and its principles, values, and 
ideals, the flag has come to represent hope, opportunity, 
justice, and freedom, not merely to the people of this Nation, 
but to the people throughout the world.
    The effort to enact S.J. Res. 40 is bipartisan. Senators 
Orrin G. Hatch (R-UT) and Max Cleland (D-GA) are the principal 
Senate cosponsors. S.J. Res. 40 has 61 sponsors, 51 Republicans 
and 10 Democrats. Congressman Gerald B. Solomon (R-NY) and 
William O. Lipinski (D-IL) are leading the effort in the House 
of Representatives on H.J. Res. 54, the House counterpart to 
S.J. Res. 40. H.J. Res. 54 has 285 sponsors, 209 Republicans 
and 76 Democrats.
    For the reasons set forth in this report, the Judiciary 
Committee reported S.J. Res. 40 and H.R. Res. 54 to the full 
Senate with a favorable recommendation, and urges that it be 

                        II. LEGISLATIVE HISTORY

    On June 21, 1989, the U.S. Supreme Court issued its 
decision in Texas v. Johnson, 491 U.S. 397 (1989). In that 
case, Gregory Johnson had been convicted of violating a Texas 
statute for knowingly desecrating an American flag. Johnson had 
burned a flag at a political demonstration outside the Dallas, 
TX, City Hall during the 1984 Republican National Convention. 
The Texas Court of Criminal Appeals reversed his conviction. 
Johnson v. State, 755 S.W.2d 92 (1988). In a 5-to-4 decision, 
the U.S. Supreme Court affirmed the reversal, holding that 
Johnson's burning of the flag was expressive conduct, a form of 
symbolic speech protected by the first amendment.
    On July 18, 1989, following the Supreme Court's decision in 
Johnson, Senators Robert Dole, Alan Dixon, Strom Thurmond, and 
Howell Heflin, as principal cosponsors, introduced Senate Joint 
Resolution 180, a proposed amendment to the U.S. Constitution, 
which would have given Congress and the States power to 
prohibit the physical desecration of the American flag. On July 
18, 1989, Senators Joseph Biden, William Roth, and William 
Cohen, as principal cosponsors, introduced S. 1338 (The Biden-
Roth-Cohen Flag Protection Act of 1989), which proposed to 
amend the Federal flag desecration statute, 18 U.S.C. 700(a). 
The Judiciary Committee held hearings on August 1, August 14, 
September 13, and September 14, 1989, on the proposed 
legislation and constitutional amendment. Approximately 20 
hours of testimony were received from 26 witnesses, including a 
broad range of constitutional scholars, historians, 
representatives of veteran's organizations, Members of the 
Senate, and attorneys from the Department of Justice. On 
September 21, 1989, the Judiciary Committee approved S. 1338 
and ordered the bill favorably reported.
    On September 12, 1989, the House of Representatives passed 
H.R. 2978 (the Flag Protection Act of 1989), and in order to 
protect the physical integrity of the flag of the United 
States. H.R. 2978 was similar to S. 1338 and also sought to 
amend 18 U.S.C. 700(a).
    On October 5, 1989, the Senate passed H.R. 2978, which was 
enacted October 28, 1989. Under this statute, codified at 
United States Code, title 18, section 700(a), ``(W)hoever 
knowingly mutilates, defaces, physically defiles, burns, 
maintains on the floor or ground or tramples upon any flag of 
the United States shall be fined under this Title or imprisoned 
for not more than one year, or both.'' An exception was made 
for ``conduct consisting of the disposal of a flag when it has 
become worn or soiled.''
    In the wake of the Flag Protection Act's passage on October 
19, 1989, S.J. Res. 180, the proposed constitutional amendment, 
failed to obtain the necessary two-thirds vote of the full 
Senate, by vote of 51 to 48. It was generally believed that the 
statute would survive constitutional scrutiny and an amendment 
was thus unnecessary.
    On June 11, 1990, the Supreme Court, however, in United 
States v. Eichman, 495 U.S. 928 (1990), held that the 1989 act, 
like the Texas statute struck down in Texas v. Johnson, 
violated the first amendment. Eichman involved individuals who 
knowingly set fire to several American flags on the steps of 
the U.S. Capitol while protesting American foreign policy, and 
other individuals who knowingly burned a U.S. flag in Seattle 
while protesting passage of the 1989 Flag Protection Act. 
According to the Court, the first amendment protected the 
conduct engaged in by these individuals.
    Shortly after the Supreme Court's decision, the Senate 
Judiciary Committee held a hearing to consider what measures 
might be taken to protect the American flag. The Committee 
heard from eight witnesses, including representatives from the 
Justice Department.
    As a result of those hearings, an amendment to the U.S. 
Constitution was introduced that would have given Congress and 
the States the power to prohibit the physical desecration of 
the flag (Senate Joint Resolution 332). On June 26, 1990, 
however, the proposed amendment failed to receive the necessary 
two-thirds vote of the full Senate, by a vote of 58 to 42.
    Thus, on March 21, 1995, Senators Hatch and Heflin, as 
principal cosponsors, along with a bipartisan group of 53 
additional cosponsors, introduced Senate Joint Resolution 31, 
another proposed amendment to the U.S. Constitution identical 
to that introduced in both 1989 and 1990.
    On June 6, 1995, a hearing on S.J. Res. 31 was held by the 
Subcommittee on the Constitution, Federalism, and Property 
Rights of the Judiciary Committee.
    On July 20, 1995, the Committee voted 12 to 6 to report 
favorably S.J. Res. 31. The House of Representatives voted 312 
to 120 in favor of an identical resolution, H.J. Res. 79, on 
June 28, 1995. On December 12, 1995, however, S.J. Res. 31 
failed to obtain the necessary two-thirds vote of the full 
Senate, by a vote of 63 to 36.
    Efforts to protect the flag did not end there, however. On 
February 4, 1998, Senator Hatch, along with Senator Cleland, 
introduced S.J. Res. 40, the Senate's most recent effort to 
pass a constitutional amendment to permit Congress to enact 
legislation prohibiting the desecration of the American flag. 
The two Senators were joined by an additional 53 original 
cosponsors in this effort, among those the Majority Leader 
Trent Lott who explained that by introducing S.J. Res. 40, the 
Senate was beginning

        the process of restoration * * * and renewal * * *. We 
        examine the events of recent years in the context of 
        history in an effort to restore and renew our faith in 
        this place we call America. The lynchpin of this 
        process will be our restoration of what our flag--our 
        American flag, the flag of these United States, the 
        flag of what our Founders referred to as ``We, the 
        people''--means to us as a people, as citizens, as 
        people united in the common cause of Freedom.

    On February 13, 1997, a similar resolution, H.J. Res. 54, 
was introduced in the House of Representatives by Congressmen 
Gerald B. Solomon (R-NY) and William O. Lipinski (D-IL) and 283 
other original cosponsors.
    On March 25, 1998, the Subcommittee on the Constitution, 
Federalism, and Property Rights held a hearing on S.J. Res. 40. 
The Subcommittee heard testimony from Alan G. Lance, attorney 
general, State of Idaho; Bruce Fein, esquire; Roger Breske, 
member, Wisconsin State Senate; Prof. Stephen B. Presser, 
Northwestern University School of Law, Chicago, IL; Prof. 
Robert Justin Goldstein, Oakland University, Rochester, MI; 
Adrian Cronauer, esquire, Burch & Cronauer, Washington, DC; 
Stan Tiner, Alabama Register, Mobile, AL; Patrick Brady, 
chairman, Citizen's Flag Alliance, Sumner, WA; Rose E. Lee, 
former national president, Gold Star Wives of America, 
Arlington, VA; Mary Frost, president, Selective Learning 
Network, Kansas City, MO; Keith A. Kreul, Fennimore, WI; 
Francis J. Sweeney, secretary/treasurer, Steamfitters Local 
Union 449, Pittsburgh, PA.
    On June 17, 1998, the resolution was polled out of the 
Subcommittee by a vote of 5 to 3, and referred to the full 
Judiciary Committee. The Committee took up the legislation on 
June 24, 1998, and voted 11 to 7 to report favorably S.J. Res. 
    Following the full Committee vote, the Committee held a 
hearing on July 8, 1998. The Committee heard testimony from Mr. 
Gary G. Wetzel, Oak Creek, WI; Sean C. Stephenson, LaGrange, 
IL; John Schneider, Westlake, CA; Tommy Lasorda, Los Angeles, 
CA; Marvin Virgil Stenhammar, Ashville, NC; Prof. Richard D. 
Parker, Harvard University Law School; Mr. Clint Bolick, 
esquire, vice president and director of litigation, Institute 
for Justice, Washington, DC.
    The House Committee on the Judiciary addressed a similar 
resolution, H.J. Res. 54, the prior year and favorably reported 
H.J. Res. 54 out on May 14, 1997, by a vote of 20 to 9. On June 
12, 1997, the House of Representatives voted 310 to 114 in 
favor of H.J. Res. 54.

                            III. DISCUSSION

        A. The Flag Is an Important Symbol of a Diverse Country

    Throughout our history, the flag has acted as a unique 
symbol among our diverse people embodying our national unity 
and national ideals. Recently, President Clinton expressed this 
transcendent symbolism when he said:

          This Star Spangled Banner and all its successors have 
        come to embody our country, what we think of as 
        America. It may not be quite the same for every one of 
        us who looks at it, but in the end we all pretty much 
        come out where the framers did. We know we have a 
        country founded on the then revolutionary idea that all 
        of us are created equal, and equally entitled to life, 
        liberty, and the pursuit of happiness; that this whole 
        country was put together out of an understanding that 
        no individual can maximize the pursuit of life, 
        liberty, and the pursuit of happiness alone, and so we 
        had to join together to reinforce each other's efforts.
          And then there was another great insight, which is 
        that in the joining we couldn't repeat the mistakes of 
        the monarchies from which we fled, and give anyone 
        absolute power over anyone else. And so we created this 
        written constitution to say that, okay, we've got to 
        join together, and some people have to be our 
        representatives and they should be given authority to 
        make certain decisions, but never unlimited and never 
          And I'd say that system has worked pretty well over 
        the last 220-plus years. And that's what that flag 
        embodies--at a moment when we could have lost it all, 
        when the White House itself was burned, when a lot of 
        people didn't think that we had such a good idea. And 
        so, now it's standing there--a little worse for the 
        wear--but quite ready to be restored. And in that 
        sense, it is a metaphor for our country, which is 
        always ready to be restored.

(Remarks at National Treasures Tour Kick-Off, National Museum 
for American History, Washington, DC, July 13, 1998.)

    Our flag functions as a symbol of our country and our 
ideals not only for Americans, but even for people of other 
nations. On September 1, at this year's summer summit in 
Moscow, President Yeltsin of the Russian Federation presented 
President Clinton with a copy of our flag first presented by a 
U.S. congressional delegation to a group of Russian merchants 
in 1866, calling it ``a symbol of friendship between our 

 1. founding fathers equated the american flag with the sovereignty of 
                               the nation

    When the Constitution's Framers adopted the flag as the 
fledgling Nation's symbol in 1777, they understood the long 
history of law surrounding the flag as an emblem of national 
sovereignty. The Framers inherited from England a legal 
tradition of protecting flags as practical instruments 
affecting title to areas of land and water, rights of trade and 
citizenship, causes of war citable in international law, and 
similar matters of the utmost weight. Thus, the original intent 
and understanding regarding the flag's protection consisted of 
sovereignty concerns. The Framers understood that the flag they 
adopted and sought to protect, apart from being merely a 
patriotic or any other type of symbol, as an incident of 
sovereignty. By recognizing the sovereignty interest in the 
flag, which historically meant responding to violations of its 
physical integrity, the Framers sought treatment for the United 
States, at home and abroad, as a sovereign nation.
    By pronouncements in the earliest years of the Republic, 
the Framers made clear that the flag, and its physical 
requirements, related to the existence and sovereignty of the 
Nation and in no way interfered with the rights established by 
the first amendment. The sovereignty interest in the flag's 
adoption was tied to concrete legal and historical factors 
which distinguished it sharply from any asserted ideology, 
patriotism, or viewpoint. The Framers, through their words and 
actions, demonstrated the historic core of consistency between 
flag protection and the first amendment. As the Supreme Court 
has explained:

          From the earliest periods in the history of the human 
        race, banners, standards, and ensigns have been 
        adopted. It is not then remarkable that the American 
        people * * * early in their history, prescribed a flag 
        as symbolical of the existence and sovereignty of the 

Halter v. Nebraska, 205 U.S. 34, 41 (1907).

    In America, the tradition that ``insults to the flag * * * 
and indignities put upon it * * * [are] sometimes punished * * 
* '' id., started with one of the earliest prosecutions in 
American history: Endecott's Case. In the 1600's, just as 
England had proceeded against those who failed to treat 
properly the flag, so Massachusetts colonists prosecuted, 
tried, and convicted a domestic defacer of the flag in 1634. 
The trial court concluded that defacing the flag was an act of 
    Endecott's Case establishes a key historic point: from the 
earliest days of the legal system in America, the law deemed an 
individual to be engaging in a punishable act for defacing a 
flag, even domestically and in peacetime. Defacing the flag 
invaded a sovereign government interest, even when undertaken 
for reasons of protest. At the time, the colonists saw the need 
to punish the act in clear sovereignty terms: defacing the flag 
would be taken as an act of rebellion, even when unaccompanied 
by danger of violence or general revolt.

            a. Intent of James Madison and Thomas Jefferson

    The original intent of the Nation's Founders clearly 
indicates the importance of protecting the flag as an incident 
of American sovereignty.
i. James Madison
    James Madison, as an original draftsman of the first 
amendment, was an authoritative source on sovereignty matters. 
In this regard, Madison consistently emphasized the legal 
significance of infractions on the physical integrity of the 
flag. On three different occasions, Madison recognized and 
sustained the legitimacy of the sovereignty interest in 
protecting the flag.
    His earliest pronouncements concerned an incident in 
October 1800, when the Algerian ship Dey of Algiers forced a 
U.S. man-of-war--the George Washington--to haul down its flag 
and replace it with that of Algiers. As Secretary of State 
under Thomas Jefferson, Madison pronounced such a situation as 
a matter of international law, a dire invasion of sovereignty, 
which ``on a fit occasion'' might be ``revived.'' Brief for the 
Speaker and Leadership Group of the U.S. House of 
Representatives, ``Amicus Curiae,'' at 33, United States v. 
Eichman, 496 U.S. 310 (1990) (No. 89-1433) [hereinafter, 
Brief], citing II ``American State Papers'' 348 (Lowrie and 
Clarke, ed. 1982).
    Madison continued his defense of the integrity of the flag 
when he pronounced an act of flag defacement in the streets of 
an American city to be a violation of law. Specifically, Mr. 
Madison pronounced a flag defacement in Philadelphia as 
actionable in court. As Judge Robert Bork described this 
historic pronouncement:

          The tearing down in Philadelphia in 1802 of the flag 
        of the Spanish Minister ``with the most aggravating 
        insults,'' was considered actionable in the 
        Pennsylvania courts as a violation of the law of 

Brief at 34, citing 4 J. Moore, ``Digest of International 
Law,'' 627 (1906) (quoting letter from Secretary of State 
Madison to Governor McKean (May 11, 1802)).

    And, on June 22, 1807, when the British ship Leopard fired 
upon and ordered the lowering of an American frigate's (the 
Chesapeake) flag, Madison told the British Ambassador ``that 
the attack on the Chesapeake was a detached, flagrant insult to 
the flag and sovereignty of the United States.'' Brief at 34, 
citing I. Brandt, ``James Madison: Secretary of State 1800-
1809,'' 413 (1953) (quoting British dispatch). A letter by 
Madison to Monroe stated Mr. Madison's view that ``the 
indignity offered to the sovereignty and flag of the nation 
demands * * * an honorable separation * * * [such as] an entire 
abolition of impressments from vessels under the flag of the 
United States * * * '' Brief at 35, citing letter from James 
Madison to James Monroe (July 6, 1807). Madison's statement 
suggests his belief that protecting the physical integrity of 
the flag ensured the protection of the Nation's sovereignty.
    Madison did not conclude--as some defenders of the right to 
deface the flag contend--that the first amendment protected 
Americans' rights to tear down a flag or that defacing the flag 
was a form of expression protected by the first amendment. On 
the contrary, it would appear that Madison had an intimate 
familiarity with the significance of protecting the physical 
integrity of the flag, especially as such protection related to 
the first amendment, which he helped draft and move through the 
1st Congress. He knew there had been no intent to withdraw the 
traditional physical protection from the flag.
    Madison's pronouncements consistently emphasized that 
``insults'' to the physical integrity of the flag continued to 
have the same legal significance in a variety of different 
contexts, abroad, at sea, and at home. To Madison, sovereignty 
entailed a relationship not only between nations and foreign 
entities, but between nations and domestic persons in wartime 
and peacetime.
ii. Thomas Jefferson
    Like Madison, Thomas Jefferson sought to protect the 
sovereignty interest in the flag. Jefferson recognized its 
complete consistency with the Bill of Rights, and deemed abuse 
of that interest a serious matter of state, not the suppression 
of some form of protected expression. Thus, for Jefferson, the 
flag as an incident of sovereignty involved a concrete legal 
status with very practical advantages for the Nation and 
citizens, who obtained those advantages through protecting a 
flag from usurpation or indignities.
    During the period of foreign war and blockades in the 
1790's, the American flag was a neutral flag, and the law of 
trade made foreign ships desire to fly it.\1\ As George 
Washington's Secretary of State, Jefferson instructed American 
consuls to punish ``usurpation of our flag.'' Brief at 35, 
citing 9 ``Writing of Thomas Jefferson,'' 49 (mem. ed. 1903). 
Jefferson stated ``you will be pleased * * * to give no 
countenance to the usurpation of our flag * * * but rather to 
aid in detecting it * * *.'' Id.
    \1\ As it did in the time of Thomas Jefferson and James Madison, 
the flag continues to serve important sovereignty interests on the high 
seas. During the Persian Gulf War, for instance, foreign tankers in the 
gulf flew the American flag, so that an act of aggression against the 
tankers would be the equivalent of an attack against the United States 
and its sovereign interest in protecting allied vessels in wartime.
    To prevent invasion of the sovereignty interest in the 
flag, Jefferson did not consider the first amendment an 
impediment to a ``systematic and severe'' course of punishment 
for persons who violated the flag. Id. Jefferson recognized the 
sovereignty interest in the flag, considered protecting it and 
punishing its abusers highly important, even after adoption of 
the Bill of Rights.
    Madison and Jefferson intended for the Government to be 
able to protect the flag consistent with the Bill of Rights. 
This was based upon their belief that obtaining sovereign 
treatment was distinct from an interest in protecting against 
the suppression of expression. Madison and Jefferson 
consistently demonstrated that they sought commerce, 
citizenship, and neutrality rights through the protection of 
the flag. They did not seek to suppress the expression of 
alternative ``ideas,'' ``messages,'' ``views,'' or 
``meanings;'' Madison and Jefferson would therefore have found 
such an interest anathema.
    Thus, from the time of the Endecott Case to the present, 
protection of the flag has continued to serve the Framers' 
original intent, as an instrument and embodiment of this 
Nation's sovereignty. Those who both framed the first amendment 
and adopted the flag had an original purpose for the flag quite 
unrelated to control of expression. The Founders considered the 
protection of the flag as an incident of sovereignty, not a 
suppression of expression.

                2. a short history of the american flag

               a. Early colonial and revolutionary flags

    Flags and banners have long been used as symbols to unify 
nations and political or religious movements. ``Since time 
immemorial man has felt the need of some sign or symbol as a 
mark to distinguish himself, [and] his family or country * * 
*.'' (E.M.C. Barraclough and W.G. Crampton, ``Flags of the 
World,'' p. 9, 1978). Flags have served that purpose since at 
least 1000 B.C. (Id.). The American flag is no exception.
    Even before the Continental Congress adopted a flag for the 
United States, banners of different designs were used in the 
Colonies. For example, Pine Tree Flags were popular in the New 
England Colonies; the pine tree was regarded as symbolizing the 
hardiness of New Englanders. One such flag is widely believed 
to have been carried by American troops on June 17, 1775, at 
the Battle of Bunker Hill. Known as the ``Bunker Hill Flag,'' 
its design had a blue field with a white canton bearing the red 
cross of St. George and a green pine tree. American naval 
vessels sailing off of New England sometimes used a flag with a 
white field with a pine tree at its center and the words ``An 
Appeal to Heaven'' emblazoned across the bottom.
    The Moultrie ``Liberty'' Flag is believed to be the first 
distinctive flag of the American Revolution displayed in the 
South, in 1775. It had a blue field and a white crescent in an 
upper corner. Later, the word ``Liberty'' was added.
    Colonel Christopher Gadsen of South Carolina designed one 
of the various Rattlesnake flags in 1775. It consisted of a 
yellow field with a coiled rattlesnake in the center, under 
which the words ``Don't Tread on Me'' were written. This banner 
proved to be an important symbol of the inchoate American 
    On January 1, 1776, George Washington, then commander in 
chief of the Continental Army, ordered the raising of a flag 
with 13 alternating red and white stripes and the Union Jack in 
the canton at Prospect Hill, near Cambridge, MA. This flag was 
known as the Grand Union Flag. Inclusion of the Union Jack, 
however, did not prove popular, especially after the signing of 
the Declaration of Independence. The Nation needed a new banner 
to represent its independence.

                        b. The Betsy Ross story

    Although the origin of the present flag's design is 
shrouded in the mists of history, one popular story has it that 
in the spring of 1776, Robert Morris, financier and patriot 
organizer, Col. George Ross of Delaware, and Gen. George 
Washington visited Mrs. Betsy Ross in her upholstery shop on 
Arch Street in Philadelphia. Her husband had died in a 
gunpowder explosion a few months earlier, after joining the 
Pennsylvania militia. They showed her a design of a flag on a 
piece of paper. After suggesting the stars have five rather 
than six points, she shortly produced a flag said to be the 
first ``national'' flag. This story was not made public until 
1870, when her grandson read a paper to the Historical Society 
of Pennsylvania. Affidavits from some of her daughters, nieces, 
and grandchildren assert that she recounted the story to them 
many times before her death in 1836.
    On June 14, 1777, the Marine Committee of the Second 
Continental Congress adopted a resolution that read:

          Resolved, that the flag of the United States be 
        thirteen stripes, alternate red and white; that the 
        union be thirteen stars, white in a blue field 
        representing a new constellation.

    Although the congressional resolution did not specify the 
arrangement of the stars, a circular pattern became popular. 
Indeed, one of the earliest known appearances of a flag 
reflecting this new constellation, occurred 2 months later at 
the Battle of Bennington. There, Lt. Col. Friedrich Baum 
commanded a unit of Hessian dragoons attached to the ill-fated 
army of British Gen. Johnny Burgoyne. The Hessians collided 
with troops under Gen. John Stark along the Walloomsac River in 
Vermont. On August 16, 1777, General Stark reportedly rallied 
his troops: ``My men, yonder are the Hessians. They were bought 
for seven pounds and ten pence a man. Are you worth more? Prove 
it. Tonight, the American flag floats from yonder hill, or 
Molly Stark sleeps a widow !''
    The Americans triumphed. This battle flag has 1 star in 
both upper corners of the blue canton, with 11 stars arranged 
in a semicircle over the numerals ``76.'' The red and white 
stripes are in reverse order--seven white and six red stripes.
    The Nation's flag was first honored by a foreign nation in 
February 1778, when the French Royal Navy exchanged 13 gun 
salutes with Capt. John Paul Jones' Ranger. It is believed that 
Captain Jones' Ranger displayed the Stars and Stripes for the 
first time in the fledgling American Navy on July 2, 1777.
    In 1791 Vermont was admitted to the Union, followed the 
next year by Kentucky. To address these additions to the Union, 
Congress adopted a new measure, in 1794, effective May 1, 1795, 
expanding the flag to 15 stars and 15 stripes, one for each 
State. The circular pattern of the stars was abandoned. This 
new flag flew as the official banner of our country from 1794 
to 1818. In 1814, while aboard a British ship moored outside of 
Baltimore Harbor, Francis Scott Key wrote the Star Spangled 
Banner in tribute to the flag flying high above Fort McHenry.
    By 1818, five additional States--Tennessee, Ohio, 
Louisiana, Indiana, and Mississippi--had entered the Union. 
Realizing that the flag would become too unwieldy if a stripe 
were added for each new State, it was suggested that the 
stripes return to 13 in number to represent the original 13 
Colonies, and that a star be added to the blue field for each 
new State admitted to the Union.
    Consequently, on April 14, 1818, President Monroe signed 
into law a bill providing ``that the flag of the United States 
be 13 horizontal stripes, alternate red and white; that the 
union have 20 stars, white in a field of blue,'' and that upon 
admission of each new State into the Union one star be added to 
the Union of the flag on the Fourth of July following its date 
of admission. Thus marked the beginning of the most detailed 
legislative provision for the design of the national symbol.

                c. Origins of the nickname ``Old Glory''

    The nickname ``Old Glory'' is said to have been given the 
flag by Capt. William Driver. Captain Driver first sailed as a 
cabin boy at age 14, from his hometown of Salem, MA. After 
several more voyages, he became master of the 110-ton brig, 
Charles Doggett, at age 21.
    Driver's mother and other women of Salem made an American 
flag of cotton, 12 feet by 24 feet in size, as a birthday and 
farewell gift. They presented it to him during the outfitting 
of his ship. As the breeze unfurled the flag, and he was asked 
by its makers what he thought of the flag, he said, ``God bless 
you, I'll call it Old Glory.'' Driver took this flag with him 
whenever he went to sea. He retired from sea duty in 1837 and 
settled in Nashville, TN, where he displayed the flag.
    By the time of the Civil War, everyone in and around 
Nashville recognized Captain Driver's ``Old Glory.'' Possession 
on any Union flag deep in Confederate territory meant real 
danger. And the Confederates were determined to find and 
destroy Driver's flag, but repeated searches revealed no trace 
of Driver's cherished banner.
    It wasn't until February 25, 1862, when Union forces 
captured Nashville and raised a small American flag over the 
capitol, that ``Old Glory'' reappeared. Accompanied by Union 
soldiers, Captain Driver returned to his home and began 
unstitching his bedcover. Inside rested the original ``Old 
Glory,'' where Driver had safely hidden it during the desperate 
days of war.
    Gathering up the flag, Captain Driver, with soldiers of the 
Sixth Ohio Regiment, returned to the capitol of Nashville, and 
replaced the small flag which fluttered there with his ``Old 

                        3. congress and the flag

    Congress has, over the years, recognized the devotion our 
diverse people have for the flag. During the Civil War, for 
example, Congress awarded the Medal of Honor to Union soldiers 
who rescued the flag from falling into Confederate hands.
    In 1940, Congress declared the Star Spangled Banner to be 
our national anthem. And in 1949, Congress established June 14 
as Flag Day--a day expressly set aside to remember and dwell 
upon the significance of the flag. Congress has also 
established ``The Pledge of Allegiance to the Flag'' and the 
manner of its recitation. The pledge states:

          I pledge allegiance to the flag, of the United States 
        of America, and to the Republic for which it stands. 
        One nation, under God, indivisible, with liberty and 
        justice for all.

The pledge demonstrates the universal understanding that the 
flag represents the Nation and the ideals of its citizens. It 
is thus a transcendent symbol of unity and nationhood.
    More recently, Congress has chosen fit to honor the flag by 
designating John Philip Sousa's ``The Stars and Stripes 
Forever'' as the national march in 1987.
    Congress has not only established the design of the flag (4 
U.S.C. 1 and 2), but also the manner of its proper display in 
the flag code (36 U.S.C. 173-179). The flag code is merely 
hortatory, however, is not legally enforceable.
    Prior to the Supreme Court's pronouncements in Eichman and 
Johnson, Congress, along with 48 States and the District of 
Columbia, had regulated physical misuse of the American flag 
through laws that originated nearly a century ago.
    In 1968, Congress enacted a nationwide flag desecration 
statute, codified at 18 U.S.C. 700(a). To avoid infringing upon 
freedom of speech, Congress limited the 1968 flag statute to 
acts of physical desecration. The language contained in the 
1917 law applicable to the District of Columbia that made it a 
crime to ``defy'' or ``cast contempt * * * by word or act'' 
upon the American flag was omitted (emphasis supplied). The 
1968 statute provided for a fine of not more than $1,000 or 
imprisonment for not more than 1 year, for anyone who 
``knowingly casts contempt upon any flag of the United States 
by publicly mutilating, defacing, defiling, burning or 
trampling upon it * * *.''
    These congressional and State actions reflect the people's 
devotion to the flag; Congress did not create the deep regard 
that Americans hold for their flag. Rather, these attempts to 
protect the flag merely reflect the will of the people.

                   4. the supreme court and the flag

    Until recently, the Supreme Court was similarly respectful 
of the flag and saw no conflict between the flag's protection 
and the first amendment. The Supreme Court's Eichman and 
Johnson decisions broke with over 200 years of precedent. 
Indeed, Chief Justice Harlan wrote in Halter v. Nebraska, 205 
U.S. 34 (1907):

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

205 U.S. at 41, 42.

    And Chief Justice Earl Warren, long recognized as a 
champion of individual liberty, penned: ``I believe that the 
States and the Federal Government do have power to protect the 
flag from acts of desecration and disgrace.'' Street v. New 
York, 394 U.S. 576, 605 (1969).
    Similarly, Justice Hugo Black, a well-known absolutist on 
Bill of Rights freedoms, observed in Street that: ``It passes 
my belief that anything in the Federal Constitution bars * * * 
making the deliberate burning of the American flag an 
offense.'' 394 U.S. at 610.
    Justice Byron White, in Smith v. Goguen, 415 U.S. 566 
(1974), echoed Black's position when he wrote that:

          There is no doubt in my mind that it is well within 
        the powers of Congress to adopt and prescribe a 
        national flag and to protect the integrity of that flag 
        * * * [T]he flag is an important symbol of nationhood 
        and unity, created by the Nation and endowed with 
        certain attributes.

415 U.S. 586-87.

    Then Associate Justice William H. Rehnquist explained: ``I 
see no reason why [the government] may not * * * create a * * * 
governmental interest in the flag by prohibiting even those who 
have purchased the physical object from impairing its physical 
integrity.'' Street, 415 U.S. at 603-04 (joined by Chief 
Justice Warren Burger).
    The future Chief Justice further articulated his views in 
Spence v. Washington, 418 U.S. 405 (1974), in which he stated:

          The true nature of the State's interest in this case 
        is not only one of preserving the physical integrity of 
        the flag, but also one of preserving the flag as ``an 
        important symbol of nationhood and unity.'' Although 
        the Court treats this important interest with studied 
        inattention, it is hardly one of recent invention and 
        has previously been accorded considerable respect by 
        this Court.

418 U.S. at 421.

    As Chief Justice Rehnquist reiterated his earlier views by 
stating in his Texas v. Johnson, 491 U.S. 397 (1989), dissent:

          The American flag * * * 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.

491 U.S. at 429.

    Justice Paul Stevens added his voice to that of Chief 
Justice Rehnquist, declaring:

          In my considered judgment, sanctioning the public 
        desecration of the flag will tarnish its value--both 
        for those who cherish the ideas for which it waves and 
        for those who desire to don the robes of martyrdom by 
        burning it. That tarnish is not justified by the 
        trivial burden on free expression occasioned by 
        requiring that an available, alternative mode of 
        expression--including uttering words critical of the 
        flag * * * be employed.

491 U.S. at 437.

    And, in United States v. Eichman, 496 U.S. 310 (1990), 
Justice Stevens further noted:

          [I]t is now conceded that the Federal Government has 
        a legitimate interest in protecting the symbolic value 
        of the American flag. Obviously that value cannot be 
        measured, or even described, with any precision. It has 
        at least these two components: in times of national 
        crisis, it inspires and motivates the average citizen 
        to make personal sacrifices in order to achieve 
        societal goals of overriding importance; at all times, 
        it serves as a reminder of the paramount importance of 
        pursuing the ideals that characterize our society.
          Thus, the Government may--indeed, it should--protect 
        the symbolic value of the flag without regard to the 
        specific content of the flag burner's speech * * *. It 
        is, moreover, equally clear that the prohibition does 
        not entail any interference with the speaker's freedom 
        to express his or her ideals by other means. It may 
        well be true that other means of expression may be less 
        effective in drawing attention to those ideas, but that 
        is not itself a sufficient reason for immunizing flag 
        burning. Presumably a gigantic fireworks display or a 
        parade of nude models in a public park might draw even 
        more attention to a controversial message, but such 
        methods of expression are nevertheless subject to 

496 U.S. at 319-20, 321-22.

    Thus, the Committee notes that many of this Nation's most 
important jurists have recognized not only the important role 
the flag plays in our Nation, but also that it can be protected 
from physical abuse without running afoul of the first 

          B. The Importance of the Flag to the American People

    Although the Committee feels no need to expand upon the 
well-known reverence in which the American people hold their 
flag, it is important to listen to the voices of the American 
people down the generations of our history expressing their 
reverence for the flag. The following are but a few examples of 
the deep feelings invoked by the American flag in its people.
    Richard Reeves, in a July 4, 1995, column in The Sun 
entitled, ``A Fourth of July on the Oregon Trail,'' quoted from 
the diary of Enoch Conyers. Conyers was part of a wagon train 
pausing in Wyoming on the Oregon Trail, heading west, in 1852. 
These are excerpts from his diary:

          July 3--Several of the boys started out his morning 
        for a hunt in the mountains for the purpose of 
        obtaining some fresh meat, if possible, for our Fourth 
        of July dinner. Those who remain in camp are helping 
        the ladies in preparing the banquet. A number of wagon 
        beds are being taken to pieces and formed into long 
          A little further on is a group of young ladies seated 
        on the grass talking over the problem of manufacturing 
        ``Old Glory'' to wave over our festivities. One lady 
        brought forth a sheet. This gave the ladies an idea. 
        Quick as thought, another brought a skirt for the red 
        stripes. Another lady ran to her tent and brought forth 
        a blue jacket, saying: ``Here, take this, it will do 
        for the field * * *.''
          July 4--The day was ushered in with the booming of 
        small arms, which was the best that we could do under 
        the circumstances, so far away from civilization. Just 
        before the sun made its appearance above the eastern 
        horizon, we raised our 40-foot flagstaff with ``Old 
        Glory'' nailed fast to the top * * *. Our company 
        circled around the old flag and sang ``The Star 
        Spangled Banner.'' Then three rousing cheers and a 
        tiger were given to ``Old Glory'' * * *.

The diary excerpts reflect not only the use of the flag's 
nickname before the Civil War, but also the popularity of ``The 
Star Spangled Banner'' nearly four decades after its 
composition by Francis Scott Key.

    At a critical juncture in this Nation's history, Henry Ward 
Beecher delivered an address entitled, ``The National Flag,'' 
in May 1861. In that address, when the youthful Nation was soon 
to be nearly torn-asunder by civil war, he attempted to touch 
upon the flag's meaning:

          A thoughtful mind, when it sees a nation's flag, sees 
        not the flag, but the nation itself. And whatever may 
        be its symbols, its insignia, he reads chiefly in the 
        flag the government, the principles, the truths, the 
        history, that belong to the nation that sets it forth * 
        * *. When the united crosses of St. Andrew and St. 
        George, on a fiery ground, set forth the banner of old 
        England, we see not the cloth merely; there rises up 
        before the mind the idea of that great monarchy.
          This nation has a banner, too, and * * * wherever it 
        [has] streamed abroad men saw day break bursting on 
        their eyes. For * * * the American flag has been a 
        symbol of Liberty, and men rejoiced in it * * *.
          If one, then, asks me the meaning of our flag, I say 
        to him, it means just what Concord and Lexington meant, 
        what Bunker Hill meant; it means the whole glorious 
        Revolutionary War, which was, in short, the rising up 
        of a valiant young people against an old tyranny, to 
        establish the most momentous doctrine that the world 
        had ever known, or has since known--the right of men to 
        their own selves and to their liberties.
          In solemn conclave our fathers had issued to the 
        world that glorious manifesto, the Declaration of 
        Independence. A little later, that the fundamental 
        principles of liberty might have the best organization, 
        they gave to this land our imperishable Constitution. 
        Our flag means, then, all that our fathers meant in the 
        Revolutionary War; all that the Declaration of 
        Independence meant; it means all that the Constitution 
        of our people, organizing for justice, for liberty, and 
        for happiness, meant. Our flag carries American ideas, 
        American history and American feelings. Beginning with 
        the colonies, and coming down to our time in its sacred 
        heraldry, in its glorious insignia, it has gathered and 
        stored chiefly this supreme idea: Divine right of 
        liberty in man. Every color means liberty; every thread 
        means liberty; every form of star and beam or stripe of 
        light means liberty; not lawlessness, not license; but 
        organized institutional liberty--liberty through law, 
        and laws for liberty !

    Similarly, an early American missionary to a foreign land 
represented the feelings of Americans traveling abroad when he 

          I never knew that I was in reality an American, until 
        I walked out one fine morning in Rotterdam along the 
        wharf where many ships lay in the waters of the Rhine. 
        Suddenly my eye caught a broad pendant floating in a 
        gentle breeze over the stern of fine ship at mizzen 
        half mast; and when I saw the wide spread eagle perched 
        on her banner with the stripes and stars under which 
        our fathers were led to conquest and victory, my heart 
        leaped into my mouth, a flood of tears burst from my 
        eyes, and before reflection could mature a sentence, my 
        mouth involuntary gave birth to these words, ``I am an 
        American.'' To see the flag of one's country in a 
        strange land, and floating upon strange waters, 
        produces feelings which none can know except those who 
        experience them. I can now say that I am an American. 
        While at home in the warmth and fire of the American 
        spirit law in silent slumber in my bosom; but the winds 
        of foreign climes have fanned it into flame.

(``History of the Church,'' vol. 4, ch. 22, pp. 387-388.)

    The identification of the flag with the Nation and its 
ideals is also reflected in a poem written by Henry van Dyke 
during World War I:

                         America's Welcome Home

                Oh, gallantly they fared forth in khaki and in blue,
                America's crusading host of warriors bold and true;
                They battled for the right of men beside our brave 
                And now they're coming home to us with glory in their 

                Oh, it's home again, America for me !
                Our hearts are turning home again and there we long to 
                In our beautiful big country beyond the ocean bars,
                Where the air is full of sunlight and the flag is full 
                of stars.

                They bore our country's great word across the rolling 
                ``America swears brotherhood with all the just and 
                They wrote that word victorious on fields of mortal 
                And many a valiant lad was proud to seal it with his 

                Oh, welcome home in Heaven's peace, dear spirits of the 
                dead !
                And welcome home ye living sons America hath bred !
                The lords of war are beaten down, your glorious task is 
                You fought to make the whole world free, and the 
                victory is won.

                Now it's home again, and home again, our hearts are 
                turning west,
                Of all lands beneath the sun America is best.
                We're going home to our own folks, beyond the ocean 
                Where the air is full of sunlight and the flag is full 
                of stars.

    Wartime, not unsurprisingly, has always been a time for the 
Nation's people to rally around the flag. Perhaps no single 
moment in American history reflects the Nation's pride in its 
flag better than that of the victory at Iwo Jima. During World 
War II, American Marines engaged in fierce combat against 
Japanese forces on that small Pacific island. The Marines 
ascent up Mount Suribachi cost nearly 6,000 American lives. One 
of the most famous scenes of the war, captured on film and 
memorialized at the Iwo Jima Memorial in Arlington, VA, 
occurred when the Marines raised the American flag in victory 
atop Mount Suribachi. Planting the flag--the Nation's symbol of 
sovereignty and power--on that small, blood-stained island so 
far from home, gave America the reassurance that the war was 
nearly ended.
    The heat of battle, however, is not the only circumstance 
in which Americans revere their flag. On July 24, 1969, 
American astronauts Neil Armstrong and Edwin ``Buzz'' Aldrin 
became the first human beings to walk on the Moon. To mark the 
moment, those great heros posted an American flag in the soil 
of that celestial body. In his own words, Astronaut Buzz Aldrin 
recalls the moment, ``Neil suggested we proceed with the flag * 
* *. As hard as we tried, the telescope wouldn't fully extend. 
Thus the flag, which should have been flat, had its own unique 
permanent wave.'' (``Apollo Expeditions to the Moon,'' edited 
by Edgar M. Cortright, NASA SP; 350 Washington, DC, 1975.) The 
Citizens Flag Alliance, a grassroots organization consisting of 
over 100 groups ranging from the American Legion and the 
Knights of Columbus, to the Congressional Medal of Honor 
Society and the African-American Women's Clergy Association, 
approached Senators Hatch and Cleland to ask them to lead a 
bipartisan effort in the Senate to move the flag amendment. In 
furtherance of that effort the Committee held several hearings.
    The Committee hearings demonstrate that reverence for the 
flag, even in these times of cynicism, has not waned. On March 
25, 1998, before the Subcommittee on the Constitution, 
Federalism, and Property Rights, Prof. Stephen Presser of 
Northwestern University Law School summed up the importance of 
the flag to its citizens:

          Throughout American history, the flag has stood for 
        the moral foundation, for the American common tradition 
        of self-sacrifice and, in particular, for the 
        sacrifices of the men and women who have given their 
        lives fighting for our way of life. * * * The flag 
        protection amendment is a gentle reminder to the 
        Supreme Court and to American opinionmakers, 
        legislators, and executives that there is something 
        moral, something sacred, at the core of American 
        society and that it deserves our respect and deference. 
        It was this thought that the signers of the Declaration 
        of Independence had in mind when they pledged their 
        sacred honor to the effort for independence. A 
        constitutional amendment which permits the American 
        people once again to affirm the sacred status of their 
        flag is a renewal of the Founders' pledge.

(Testimony of Prof. Stephen B. Presser, Mar. 25, 1998, at 44-

    Mr. Adrian Cronauer, esquire, a Vietnam veteran and former 
Armed Forces radio personality, testified:

          As a symbol of our Nation, the American flag 
        represents all of us and all the values we hold sacred. 
        When somebody desecrates our flag, they desecrate all 
        that is valuable and desirable for ourselves and for 
        our progeny. * * * I would like to point out something 
        that that great intellect and patriot [Thomas 
        Jefferson] said in a letter to James Madison. He said, 
        ``It is my principle that the will of the majority 
        should always prevail. If they approve the proposed 
        convention in all parts, I shall concur in it 
        cheerfully, in hopes that they will amend it whenever 
        they shall find it works wrong.''
          An overwhelming number of Americans believe that it 
        is working wrong in this case. It the overwhelming will 
        of the people that we have the right to protect our 
        flag, and I urge you gentlemen to allow us to do so by 
        passing this amendment and sending it on to the States 
        for ratification.

(Testimony of Mr. Adrian Cronauer, Mar. 25, 1998, at 58.)

    General Patrick Brady, chairman of the board of the 
Citizen's Flag Alliance testified:

          The flag protection amendment is a perfect example of 
        democracy at work, a majority of Americans exercising 
        their right to rule. We are not trying to force the 
        minority to respect the flag. We are asking the 
        Government to let the people decide. The Constitution 
        gives us the right to peacefully protest an action of 
        the Nation, and that is what we are doing. It does not 
        give us the right to violently protest the foundations 
        of the Nation, and that is what the flag burners are 
          There are great and gifted Americans on both sides of 
        this issue, and learned opinions, but there is only one 
        fact. The American people want their flag rights 
        returned. Whatever concerns some may have, I pray they 
        will muster the courage to believe that just this once 
        they may be wrong and the American public may be right. 
        And I hope they can have the compassion to defer to 
        those great blood donors to our freedom, many whose 
        final earthly embrace was in the folds of Old Glory.

(Testimony of Maj. Gen. Patrick Brady, Mar. 25, 1998.)

    Mrs. Rose E. Lee, former national president of the Gold 
Star Wives of America, an organization that represents 12,000 
American women, who are widows of American servicemen killed in 
action or by service-connected activities or disabilities 
testified. In urging Congress to protect the flag she stated 
how important the flag was to her:

          The flag means something different to every American, 
        but to Gold Star Wives it has the most personal of 
        meanings. Twenty-six years ago, this flag that I hold 
        covered the casket of my husband, Chew-Mon Lee. He was 
        in the U.S. Army. He was a decorated soldier who was 
        wounded in Korea. He received the Purple Heart with an 
        Oak Leaf Cluster. He also was awarded the Distinguished 
        Service Cross for service in Korea for extraordinary 
        heroism in military operations against an armed enemy. 
        He also served as a staff officer in Vietnam. He later 
        died on active duty overseas in Taiwan and he is buried 
        in Arlington National Cemetery.

           *         *         *         *         *

          When I received the beautiful American flag which the 
        honor guard folded reverently in a triangle, it was a 
        symbol of America. From the moment it was presented to 
        me, it was America. It stood for freedom my husband 
        fought for; it was those freedoms. That is why the flag 
        is so precious to me. It conveys so much, and of all 
        that I have of my husband, it represents all that 
        anyone could ask of a country.

(Testimony of Mrs. Rose E. Lee, Mar. 25, 1998, at 91-92.)

    The deep feelings invoked by the flag are demonstrated by 
the fact that 49 State legislatures have called for a 
constitutional amendment on flag desecration. According to 
Prof. Stephen B. Presser, no other amendment in the Nation's 
history has received such strong support in State legislatures.
    On July 8, 1998, the Committee on the Judiciary held a 
hearing and heard testimony from still more witnesses who 
wanted to voice their support of S.J. Res. 40. The Committee 
heard from Mr. Gary Wetzel, a Vietnam veteran, who was awarded 
the Medal of Honor. Mr. Wetzel told the Committee that he was 
testifying before Congress on behalf of the flag amendment 
because he wanted to help preserve the flag for the Nation's 

          Young people are our Nation's most precious asset, 
        and I have a special concern for those who live in the 
        inner city. When I talk to these kids about what it 
        means to be a good citizen, I speak of yesterday's 
        sacrifices. I tell them of citizens from our history, 
        and I knew many, who gave their lives for their home, 
        their family, their country; yes, even the flag.

           *         *         *         *         *

          Indeed, our children are our greatest treasure and 
        sometimes our best teachers. Please listen to the words 
        of Noelle Ann Meyer, a senior at River Falls Senior 
        High School in Roberts, WI, who wrote, ``The American 
        flag symbolizes a nation that President Lincoln 
        described as the `last, best hope on earth.' Most 
        Americans know that the flag is more than just a fabric 
        with colors. When it passes in parades, people stand 
        taller; when youngsters look at it and recite the 
        Pledge of Allegiance, they see more than just a banner 
        hanging on a stick. When it covers a casket, it is our 
        country's way of honoring a loved one or friend * * *. 
        So it is with our flag, as it stands proud, that we 
        pledge to protect it, a right of the people * * * the 
        right thing to do.''

(Testimony of Mr. Gary G. Wetzel, July 8, 1998, at 18-19.)

    Sean Stephenson, a 19-year-old political science major at 
DePaul University told the Committee how he felt America's 
youth viewed flag burning:

        * * * I feel that, for instance, when I talk amongst my 
        peers that a lot of them, to be honest, are shocked. 
        They already thought that the flag was protected. They 
        didn't even realize that Texas v. Johnson was going on. 
        And when I told them that you can now burn the flag and 
        it is legal, they were shocked and they couldn't even 
        believe it. And we sat around talking and I was 
        thinking to myself, you know, we live in a society that 
        we want to say, well, I can do this, well, I can do 
        this. And it gets to the point where everything has 
        been tugged and twisted and pulled to the point where 
        there is nothing sacred left. There is nothing that you 
        can point to and say we cherish that, we as a country 
        cherish that.

(Testimony of Mr. Sean Stephenson, July 8, 1998, at 61-62.)

    Expressing similar feelings, entertainer and actor John 
Schneider testified that:

          Burning the flag communicates no tangible idea other 
        than pure hatred. I believe it is a hate crime, 
        attacking the very foundation of our unity and our 
        community. Allowing flag desecration to continue is 
        about legitimizing violence and moral wrong in real 
        life before the eyes of our children, without parental 
        warnings or viewer discretion.
          Thomas Paine once warned his countrymen that a long 
        habit of not thinking a thing wrong gives it a 
        superficial appearance of being right, and I will give 
        that same warning today. If we ignore the fact that 
        desecration of our flag is wrong, a fact that was 
        recognized throughout our Nation's history up until the 
        last nine years, it will not be wrong in the eyes of 
        our children or in the eyes of our children's children.
          Abraham Lincoln said that in America our rights stop 
        at doing that which is wrong, and I have always 
        believed that each of us is entitled to express 
        opinions as we feel necessary. But flag desecrators go 
        beyond the bounds of decency and civility. They are no 
        longer fellow citizens expressing opinions, but violent 
        thieves attempting to steal our Nation's soul. They are 
        stealing from our children by demonstrating to them 
        that it is okay to betray the duties and 
        responsibilities that come with being a citizen of this 
        country. We have seen too much good in our people, we 
        have had too many dreams come true and worked too hard 
        to get where we are to protect our children from these 

           *         *         *         *         *

          If our flag can be tossed to the ground and tread 
        upon like a common rag, then perhaps we have reached 
        this point and all of our grandfathers were merely 
        sentimental old fools born into an age not as 
        enlightened as ours, an age where enlightenment is 
        argued to be found in the flickering light of a burning 
        flag. Well, you can call me sentimental, but I will not 
        be caught in that flickering light.

(Testimony of Actor John Schneider, July 8, 1998, at 34-35.)

    Later during questioning by Senator Feingold as to whether 
constitutional protection should be extended to a copy of the 
Constitution or a copy of the Declaration of Independence, Mr. 
Schneider responded:

          I believe that the flag is * * * the embodiment of 
        us, of what we are, of what we have been and what we 
        will hopefully become. So if you will, the desecration 
        of the flag of the United States of America is akin to 
        walking out in the street and punching someone in the 
        nose, but a very big and very important someone. The 
        flag of the United States represents and embodies all 
        of us, my son, your son, my grandfather, my father. So 
        there is a difference between a document and a tangible 
        embodiment of a people.

(Id. at 56-57.)

    Additional witnesses appeared before the full Committee to 
voice their thoughts on flag burning. For example, Tommy 
Lasorda, a U.S. Army veteran, and still better known as the 
general manager and vice president of the Los Angeles Dodgers, 
recounted a powerful story describing how he witnessed a flag 
burning during a major league baseball game in 1976. Mr. 
Lasorda passionately described:

        [o]ne of the men stooped to his knees, unscrewed a cap 
        to a can of lighter fluid and soaked the American flag 
        with it. We all watched dumbstruck as the man pulled 
        out a match and tried to light the American flag to 
        burn it. To the astonishment of the protesters, the 
        fans and those of us on the field, all-star outfielder 
        Rick Monday ran at the protesters, grabbed the burning 
        flag and ran toward the dugout as I screamed at the 
        protesters from the third base coaching box.
          The fans immediately got on their feet to recognize 
        Monday's heroic act, and without any prompting that I 
        can remember, the whole crowd stood and began to fill 
        the stadium with an impromptu rendition of ``God Bless 
        America.'' * * * Today, the flag-burning incident is 
        still shown in highlights, and everyone who saw the 
        incident then and now knows the protesters were doing 
        something terrible, offensive and wrong.

(Testimony of Mr. Tommy Lasorda, July 8, 1998, at 40-41.)

    Mr. Marvin Stenhammar, a Vietnam veteran appeared as a 
witness in opposition to the flag amendment. After close 
questioning by Chairman Hatch as to why the amendment should 
not be passed and turned over to the people of the United 
States to decide, acknowledged that he would support the will 
of the people: ``I would certainly support the will of the 
people. I mean, that is what democracy is all about.'' 
(Testimony of Mr. Marvin Stenhammar, July 8, 1998, at 79.)
    The Committee also heard from a constitutional scholar, 
Prof. Richard Parker, Harvard University Law School. Mr. Parker 
told the Committee that ``crazy people who desecrate the flag 
can't ruin the flag as a symbol. It is only we who can do that 
by failing to respond, by remaining passive, by remaining 
silent.'' He went on to say, ``the point of this amendment is 
to restore the prior meaning of the Constitution, not to change 
it * * * '' (Testimony of Prof. Richard Parker, July 8, 1998, 
at 92, 94.)

C. A Constitutional Amendment is the Only Legal Means of Protecting the 
                     Flag From Physical Desecration

    A constitutional amendment is the sole means by which power 
can be restored to the people, through their elected 
representatives, enabling them to enact legal protection for 
the flag. The Supreme Court has given the American people and 
their elected representatives no choice but to amend the 
    In Texas v. Johnson, Gregory Lee Johnson participated in a 
political demonstration at the 1984 Republican National 
Convention, protesting policies of the Reagan administration 
and certain Dallas-based corporations. Johnson was given an 
American flag from a fellow protester, who had taken it from a 
flagpole. At Dallas City Hall, Johnson unfurled the American 
flag, poured kerosene on it, and burned it. While the flag 
burned, protesters chanted: ``America, the red, white, and 
blue, we spit on you.''
    Johnson was convicted of desecration of a venerated object 
in violation of section 42.09(a)(3) of the Texas penal code 
which, inter alia, made illegal the intentional or knowing 
desecration of a national flag.
    By a 5-to-4 vote, however, the Supreme Court held that 
Johnson's conviction was inconsistent with the first amendment. 
The first amendment has been held to be applicable to State 
action by virtue of the 14th amendment's due process clause. 
The Supreme Court acknowledged that ``Johnson was convicted of 
flag desecration for burning the flag, rather than for uttering 
insulting words.'' 491 U.S. at 402 (footnote omitted). And the 
Johnson majority concluded that ``Johnson's burning of the flag 
was conduct `sufficiently imbued with elements of 
communication' to implicate the First Amendment.'' Id. at 406 
(citation omitted). Generally, if expressive conduct is being 
regulated by government for reasons unrelated to the 
suppression of expression, the Government need meet a less 
stringent standard and thus has a freer hand than if the 
Government is seeking to regulate expression itself. Id. at 
406, 407. However, the Court determined that a State's 
``interest in preserving the flag as a symbol of nationhood and 
national unity * * * is related to expression in the case of 
Johnson's burning of the flag.'' Thus, the more stringent 
test--``the most exacting scrutiny''--must be applied to Texas' 
conviction of Johnson (Id. at 410 [citation omitted].)
    As a result, ``Texas argues that its interest in preserving 
the flag as a symbol of nationhood and national unity survives 
this close analysis.'' Id. at 413. The Johnson majority 
nevertheless disagreed:

        [N]othing in our precedents suggests that a state may 
        foster its own view of the flag by prohibiting 
        expressive conduct relating to it * * *. If we were to 
        hold that a state may forbid flag burning wherever it 
        is likely to endanger the flag's symbolic role, but 
        allow it whenever burning a flag promotes that role--as 
        where, for example, a person ceremoniously burns a 
        dirty flag--we would be saying that when it comes to 
        impairing that flag's physical integrity the flag 
        itself may be used as a symbol--as a substitute for the 
        written or spoken word or a ``short cut from mind to 
        mind''--only in one direction * * *. We never before 
        have held that the Government may ensure that a symbol 
        be used to express only one view of that symbol or its 
        referents * * *.
          There is, moreover, no indication--either in the text 
        of the Constitution or in our cases interpreting it--
        that a separate juridical category exists for the 
        American flag alone * * *.

Id. at 415-417.

    In dissent, Justice Stevens noted that the question whether 
a State or the Federal Government ``has the power to prohibit 
the public desecration of the American flag * * * is unique.'' 
Id. at 436 (Stevens, J., dissenting). Justice Stevens 

        * * * [I]n my judgment rules that apply to a host of 
        other symbols, such as state flags, armbands, or 
        various privately promoted emblems of political or 
        commercial identity, are not necessarily controlling. 
        Even if flag burning could be considered just another 
        species of symbolic speech under the logical 
        application of the rules that the Court has developed 
        in its interpretation of the First Amendment in other 
        contexts, this case has an intangible dimension that 
        makes those rules inapplicable.
          A country's flag is a symbol of more than 
        ``nationhood and national unity.'' It also signifies 
        the ideas that characterize the society that has chosen 
        that emblem as well as the special history that has 
        animated the growth and power of those ideas. The 
        fleurs-de-lis and the tricolor both symbolized 
        ``nationhood and national unity,'' but they had vastly 
        different meanings. The message conveyed by some 
        flags--the swastika, for example--may survive long 
        after it has outlived its usefulness as a symbol of 
        regimented unity in a particular nation.
          So it is with the American Flag. It is more than a 
        proud symbol of the courage, the determination, and the 
        gifts of nature that transformed 13 fledgling Colonies 
        into a world power. It is a symbol of freedom, of equal 
        opportunity, of religious tolerance, and of good will 
        for other peoples who share our aspirations. The symbol 
        carries its message to dissidents both at home and 
        abroad who may have no interest at all in our national 
        unity or survival.
          The value of the flag as a symbol cannot be measured. 
        Even so, I have no doubt that the interest in 
        preserving that value for the future is both 
        significant and legitimate. Conceivably that value will 
        be enhanced by the Court's conclusion that our national 
        commitment to free expression is so strong that even 
        the United States as ultimate guarantor of that freedom 
        is without power to prohibit the desecration of its 
        unique symbol. But I am unpersuaded. The creation of a 
        federal right to post bulletin boards and graffiti on 
        the Washington Monument might enlarge the market for 
        free expression, but at a cost I would not pay. 
        Similarly, in my considered judgment, sanctioning the 
        public desecration of the flag will tarnish its value--
        both for those who cherish the ideas for which it waves 
        and for those who desire to don the robes of martyrdom 
        by burning it. That tarnish is not justified by the 
        trivial burden on free expression occasioned by 
        requiring that an available, alternative mode of 
        expression--including uttering words critical of the 
        flag, see Street v. New York, 394 U.S. 576 (1969)--be 
          It is appropriate to emphasize certain propositions 
        that are not implicated by this case. The statutory 
        prohibition of flag desecration does not ``prescribe 
        what shall be orthodox in politics, nationalism, 
        religion, or other matters of opinion or force citizens 
        to confess by word or act their faith therein,'' West 
        Virginia Board of Education v. Barnette, 409 U.S. 624, 
        642 (1943). The statute does not compel any conduct or 
        any profession of respect for any idea or any symbol.

           *         *         *         *         *

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

Id. at 436-39.

    The majority opinion, by contrast, was unable to appreciate 
the uniqueness of the flag:

          To conclude that the government may permit designated 
        symbols to be used to communicate only a limited set of 
        messages would be to enter territory having no 
        discernible or defensible boundaries. Could the 
        government on this theory prohibit the burning of state 
        flags? Of copies of the Presidential seal? Of the 
        Constitution? In evaluating these choices under the 
        First Amendment, how would we decide which symbols were 
        sufficiently special to warrant this unique status? To 
        do so, we would be forced to consult our own political 
        preferences, and, impose them on the citizenry, in the 
        very way that the First Amendment forbids us to do.

Id. at 417.

    The American flag as mere ``designated symbol?'' The 
American flag as indistinguishable from a State flag, a copy of 
the Presidential seal, or a copy of the Constitution? The Court 
could have recognized the obvious uniqueness of the American 
flag, as all four dissenters did. The law need not be utterly 
divorced from common sense and understanding on this point. The 
proposed amendment does no more than return us to this common 
understanding and commonsense point of view, as most recently 
expressed by 49 State legislatures.
    As Chief Justice Rehnquist, for himself and Justices White 
and O'Connor, stated in dissent: ``For more than 200 years, the 
American flag has occupied a unique position as the symbol of 
our Nation, a uniqueness that justifies a governmental 
prohibition against flag burning in the way respondent Johnson 
did here.'' Id. at 422. Rebuking the Johnson majority, he 
continued later in his dissent:

          The uniquely deep awe and respect for our flag felt 
        by virtually all of us are bundled off under the rubric 
        of ``designated symbols,'' that the First Amendment 
        prohibits the government from ``establishing.'' But the 
        government has not ``established'' this feeling; 200 
        years of history have done that. The government is 
        simply recognizing as a fact the profound regard for 
        the American flag created by that history when it 
        enacts statutes prohibiting the disrespectful public 
        burning of the flag.

Id. at 434.

    In an earlier case, Justice White wrote: ``One need not 
explain fully a phenomenon to recognize its existence and in 
this case to concede that the flag is an important symbol of 
nationhood and unity, created by the Nation and endowed with 
certain attributes * * *. Smith v. Goguen, 415 U.S. 566 at 587 
(White, J., concurring).
    Following the Supreme Court's decision in Texas v. Johnson, 
there was a thoughtful debate over whether a so-called facially 
content neutral flag protection statute would survive the 
Supreme Court's scrutiny. Legal scholars and many commentators 
were divided over this question. A number of Members of 
Congress did not believe any such statute could survive the 
majority's analysis in Johnson, even aside from whether a 
facially content neutral flag protection statute is desirable 
as a matter of sound public policy. The Johnson majority 
declared that the government's asserted interest in preserving 
the flag as a national symbol was insufficient to overcome the 
majorities newly minted ``right'' to burn or otherwise 
physically mistreat the flag as part of expressive conduct. 
Nevertheless, it cannot be denied that the principal, if not 
the only purpose, in enacting a facially content neutral 
statute is to protect the symbolic value of the flag. Indeed, 
one underlying purpose of any statutory effort to respond to 
Johnson would by to prohibit ``expressive'' conduct that 
physically desecrates the flag. Further, a facially neutral 
statute which did not permit an exception for disposal of a 
worn or soiled American flag by burning--which is the preferred 
way of doing so--would lead to highly undesirable results. Yet 
such an exception necessarily undermines the purported 
neutrality of such statute--indeed, the Court said so in 
    Congress did enact a facially neutral statute in 1989 with 
an exception for disposal of worn or soiled flags, as a 
response to the Johnson decision. The Supreme Court promptly 
struck it down 5 to 4:

          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,'' and concerned with the content of 
        such expression. The Government's interest in 
        protecting the ``physical integrity'' of a privately 
        owned flag rests upon a perceived need to preserve the 
        flag's status as a symbol of our Nation and certain 
        national ideas * * *.

United States v. Eichman, 496 U.S. 400, at 405, 406 (citations 
omitted; emphasis in original).

    A statutory response to the Johnson and Eichman decisions 
is thus clearly not a realistic option, even though a narrow 5-
to-4 majority of the Supreme Court erred in Texas v. Johnson 
and repeated its error in United States v. Eichman. The Clinton 
administration agrees Texas v. Johnson was wrongly decided, 
even though he opposes any constitutional amendment on flag 
protection. (Testimony of Assistant Attorney General for Legal 
Counsel Walter Dellinger, June 6, 1995, Tr. at 54, 66.)
    Unfortunately, we live in a time where standards have 
eroded. Civility and mutual respect are in decline. Nothing is 
immune from being reduced to the commonplace. Absolutes are 
distrusted. Values are considered relative. Rights are 
cherished and constantly expanded, but responsibilities are 
shirked or scorned. Americans, however, seek to instill in our 
children a pride in their country that will serve as a basis 
for good citizenship and a devotion to improving the United 
States of America and adhering to its best interests as they 
can see them. It remains the hope of America that all people of 
diverse backgrounds will unite as Americans, under one flag, as 
one people. Although our citizens ask their children to pledge 
allegiance to the flag, Johnson and Eichman dictate that we 
must tell them the same flag is unworthy of legal protection 
when it is treated in the most vile, disrespectful, and 
contemptuous manner.
    At the same time, our country grows more and more diverse. 
Many of our people revel in their particular cultures and 
diverse national origins, and properly so. Others are alienated 
from their fellow citizens and from government altogether. But 
we have no monarchy, no ``state'' religion, no elite class--
hereditary or otherwise--``representing'' the Nation. We have 
the flag.
    The American flag is the one symbol that unites a very 
diverse people in a way nothing else can, in peace and in war. 
Despite our differences of party, politics, philosophy, 
religion, ethnic background, economic status, social status, or 
geographic region, the American flag forms a unique, common 
bond among us. Many do not realize that failure to protect the 
flag inevitably weakens this bond. The flag stands above all or 
our differences. The American people's desire for the legal 
protection of their beloved flag draws support across all of 
the lines that otherwise divide us.
    It is not possible to express fully all of the reasons the 
flag deserves such protection. As then-Justice Rehnquist wrote 
in 1974: ``The significance of the flag, and the deep emotional 
feelings it arouses in a large part of our citizenry, cannot be 
fully expressed in the two dimensions of a lawyer's brief or of 
a judicial opinion.'' Smith v. Goguen, 415 U.S. 566 at 602 
(1974) (Rehnquist, J., dissenting). The same is true of a 
congressional committee report.

 1. analysis of s. 982, the flag protection and free speech act of 1997

    Legislation is pending in the Senate--the Flag Protection 
and Free Speech Act of 1997, S. 982, to provide statutory 
protections for the flag based on the ``fighting words'' 
doctrine. A virtually identical bill was introduced in 1995, 
which the Senate Committee on the Judiciary, in its report on 
pending flag protection proposals, dismissed as ``not a viable 
option.'' Nonetheless, prior to voting on the constitutional 
amendment in 1995, the full Senate gave specific consideration 
to the bill, and rejected it by a substantial majority.
    Even if the proposed flag protection act were somehow to 
become law, the Supreme Court, based on its holdings in Texas 
v. Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 
496 U.S. 310 (1990), inevitably would strike the law down as 
unconstitutional. These holdings also make clear that the 
``fighting words'' doctrine, as construed by the Supreme Court, 
will not save the bill from constitutional invalidation. 
Moreover, the proposed bill fails on public policy grounds, by 
providing only limited legal protection for the flag of the 
United States and actually promoting violence instead of 
deterring it.
    Moreover, this statute would doubtless be found 
unconstitutional under the same analysis that struck the 
statute at issue in Eichman. In response to Texas v. Johnson, 
which held the Texas flag protection statute unconstitutional, 
Congress enacted what it thought was a narrowly crafted, 
``content neutral'' flag protection statute, only to have the 
statute invalidated a year later in the United States v. 
Eichman case.\2\ The majority's interpretation of the first 
amendment in these two cases was perfectly clear: While 
Government may ``encourage'' respect for the flag, it may not, 
under color of law, single out the flag for protection.
    \2\ In Eichman, the Supreme Court rejected the Government's attempt 
to distinguish between the content-neutral Federal statute, which 
criminalized flag destruction regardless of ``the actor's motive, his 
intended message, or the likely effect of his conduct on onlookers'' 
and the Texas statute at issue in Johnson, which regulated speech 
content by expressly prohibiting acts of physical desecration ``that 
the actor knows will seriously offend onlookers.'' 496 U.S. at 315. 
According to the Court, in either instance, the Government's interest 
``is related to the suppression of free expression.'' Id.
    In both Johnson and Eichman, the Court affirmed that 
expressive conduct, be it burning a draft card or the American 
flag, will be afforded less exacting constitutional scrutiny 
than pure speech. The Court also established that its primary 
concern in examining expressive conduct is whether ``the 
government interest [in proscribing the conduct] is unrelated 
to the suppression of free expression.'' United States v. 
Eichman, 496 U.S. 310, 314 (1990), quoting United States v. 
O'Brien, 391 U.S. 367, 377 (1968). In both cases, the Court 
recognized the Government's interest to be protecting the flag 
as a symbol of ``nationhood and national unity.'' Eichman, 496 
U.S. at 314. The Court definitively concluded in Eichman, 
however, that even though the Federal statute ``contains no 
explicit content-based limitation * * * the Government's 
asserted interest is related to the suppression of free 
expression.'' Id. at 315. According to the Court, the 
Government's desire to protect the flag ``is implicated only 
when a person's treatment of the flag communicates a message to 
others.'' Id. at 316. In other words, the majority of the Court 
believes the flag represents certain determinate ideas and that 
any law specifically protecting the flag, by prohibiting damage 
or destruction of the flag, will be per se invalid.
    Similarly, the proposed statute is contrary to the 
principles the Court articulated in the Johnson and Eichman 
decisions. The bill is designed to protect the flag as the 
``unique symbol of national unity * * * and the values of 
liberty, justice and equality.'' S. 982, 105th Cong., 2d sess., 
sec. 2(a)(1) (1998). As discussed above, however, the Court has 
specifically decided to condemn the goal of singling out the 
flag and the values it represents for protection.\3\
    \3\ In a 1995 Congressional Research Service (CRS) analysis of 
Senator McConnell's 1995 flag protection statute, CRS predicted that 
the legislation would pass constitutional muster because ``nothing in 
the legislation draws a distinction between approved or disapproved 
expression that is communicated by the action committed with or on the 
flag.'' John R. Luckey, American Law Division, Congressional Research 
Service, ``Analysis of S. 1335, the Flag Protection and Free Speech Act 
of 1995,'' at 3 (Nov. 8, 1995). The Court, however, made perfectly 
clear in Johnson and Eichman, that, because the flag represents certain 
determinate ideas, any law specifically protecting the flag, regardless 
of its content neutrality, will be unconstitutional--see e.g., the 
content-neutral statute invalidated in the Eichman case.
    In addition, in the Johnson case, the Court specifically 
refuted the argument that a public flag burning at an anti-
Government protest fit within the extremely narrow class of 
``fighting words'' that ``are likely to provoke the average 
person to retaliation, and thereby cause a breach of the 
peace.'' 491 U.S. at 409, citing Chaplinsky v. New Hampshire, 
315 U.S. 568, 574 (1942). According to the Court, no reasonable 
onlooker would have regarded the flag desecration ``as a direct 
personal insult or an invitation to fisticuffs.'' Id. The Court 
concluded that, because ``Texas already has a statute 
specifically prohibiting breaches of the peace * * * Texas need 
not punish flag desecration in order to keep the peace.'' Id. 
at 410. Indeed, the Chaplinsky ``fighting words'' doctrine is 
so rarely, if ever, followed and so often distinguished that it 
is extremely unlikely to save the proposed bill from 
constitutional infirmity.
    The proposed statute also fails to achieve its stated ends. 
In addition to the constitutional flaws discussed above, the 
proposed statutory ``fix'' fails on public policy grounds. The 
stated purpose of the legislation is to provide ``maximum 
protection'' for the flag, yet the coverage of the bill is 
extremely limited. It would criminalize flag desecration that 
either is likely to ``produce imminent violence or a breach of 
the peace'' or when the flag is property of the United States 
or another citizen, provided the behavior occurs on Federal 
    In most cases of flag desecration, however, the flag is the 
property of the individual desecrating it, and in very few 
cases does flag desecration occur on Federal land or involve 
the kind of face-to-face incitement the legislation proposes to 
reach. Indeed, as discussed above, the Supreme Court in the 
Johnson case refused to apply the ``fighting words'' doctrine 
in the context of a public flag burning, finding the action 
unlikely to result in a ``direct personal insult or an 
invitation to exchange fisticuffs.'' 491 U.S. 397, 409 (1989). 
Moreover, as the Court emphasized in the Johnson case, there 
are already Federal and State laws criminalizing the conduct--
i.e. theft and breaches of the peace.
    While enacting appropriate statutory protections for the 
flag is indeed preferable, the Supreme Court's decisions have 
resulted in the current predicament that such protections are 
not constitutionally possible.

        D. S.J. Res. 40 Is An Appropriate Constitutional Remedy

  1. s.j. res. 40 does not ``trump'' the first amendment or otherwise 
                           limit free speech

    Contrary to certain claims, S.J. Res. 40 neither undermines 
the first amendment, nor does it limit free speech, properly 
understood. The proposed amendment would not prevent anyone 
from saying anything or engaging in protected activity. The 
amendment merely affords Congress the power to protect the 
flag. In and of itself, the amendment contains not limitation 
on speech of any kind.
    By the same token, not everything arguably construed as 
``speech'' enjoys first amendment protection. Until two recent, 
very narrow 5-to-4 decisions by the Supreme Court in Texas v. 
Johnson, 491 U.S. 397 (1989) and in United States v. Eichman, 
496 U.S. 310 (1990), punishing flag desecration had been viewed 
as compatible with both the letter and spirit of the first 
amendment. This compatibility was consistent with the views of 
the Framers of the Constitution, who strongly supported 
government actions to prohibit flag desecration.
    Such leading proponents of individual rights as former 
Supreme Court Chief Justice Earl Warren, Justice Abe Fortas and 
Justice Hugo Black each have opined that the Nation could, 
consistent with the first amendment, prosecute physical 
desecration of the flag. As Justice Black, perhaps the leading 
exponent of first amendment freedoms ever to sit on the Supreme 
Court stated: ``It passes my belief that anything in the 
Federal Constitution bars * * * making the deliberate burning 
of the American flag an offense.'' Street v. New York, 394 U.S. 
576, 610 (1969). Former Chief Justice Earl Warren stated, ``I 
believe that the States and the Federal Government do have 
power to protect the flag from acts of desecration and 
disgrace.'' Id. at 605.
    This tradition and precedent is rooted in the principle 
that flag desecration is expressive conduct as distinguished 
from actual speech. Expressive conduct, be it burning a draft 
card or a flag, is afforded a lower level of constitutional 
protection than actual speech. A statute passed under the 
proposed amendment would not make it unlawful to say anything, 
no matter how repugnant the statement might be. What will be 
proscribed, consistent with first amendment case law, is 
certain conduct.
    The Supreme Court has accepted the premise that certain 
``expressive'' acts are entitled to first amendment protection, 
based upon the principle that the Government may not prohibit 
the expression of an idea simply because society finds the idea 
itself offensive or disagreeable. Texas v. Johnson, 491 U.S. 
397, 414 (1989). On the other hand, not all activity with an 
allegedly expressive component will be afforded first amendment 
protection. Someone who desires, for instance, to protest 
wildlife conservation laws could not, in the name of free 
speech, kill bald eagles. Nor could an individual break down 
the doors of the State Department merely because he disagreed 
with the Nation's foreign policy. The Court has said that 
certain modes of expression may be prohibited if: (1) the 
prohibition is supported by a legitimate government interest 
unrelated to suppression of the ideas the speaker desires to 
express; (2) the prohibition does not interfere with the 
speaker's freedom to express those ideas by other means; and 
(3) the interest in allowing the speaker complete freedom among 
all possible modes of expression is less important than the 
societal interest supporting the prohibition. United States v. 
O'Brien, 391 U.S. 367, 377 (1968).
    Applying these principles, the Supreme Court upheld a 
statute prohibiting the destruction of draft cards against a 
first amendment challenge. Id. The Court stated that the 
prohibition served a legitimate purpose--facilitating draft 
induction in time of national crisis--that was unrelated to the 
suppression of the speaker's ideas, since the law prohibited 
the conduct regardless of the message sought to be conveyed by 
destruction of the draft card. The prohibition also did not 
preclude other forms of expression or protest, and the Court 
held that the smooth functioning of the Selective Service 
System outweighed the need to extend first amendment 
protections to the act itself. Id.
    This reasoning is consistent with that of the Eichman 
dissenters. Chief Justice Rehnquist and Justices O'Connor, 
Stevens, and White stated that Congress could prohibit flag 
desecration consistent with first amendment protections.
    The dissenters reasoned as follows: First, the Federal 
Government has a legitimate interest in protecting the 
intrinsic value of the American flag, which, ``in times of 
national crisis, inspires and motivates the average citizen to 
make personal sacrifices in order to achieve societal goals of 
overriding importance * * * and serves as a reminder of the 
paramount importance of pursuing the ideals that characterize 
our society.'' 496 U.S. at 319. According to the dissent, the 
Government's interest in preserving the value of the flag ``is 
unrelated to the suppression of the ideas that flag burners are 
trying to express'' and is ``essentially the same regardless of 
which of many different ideas may have motivated a particular 
act.'' Id. at 320.
    Nor, reasoned the dissenters, does the prohibition entail 
any interference with the speaker's freedom to express his or 
her ideas by other means. According to the dissent, while other 
means of expression may be less effective in drawing attention 
to the speaker's message, this is not itself a sufficient 
reason for immunizing flag desecration. Id. at 322. 
``Presumably a gigantic fireworks display or a parade of nude 
models in a public park might draw even more attention to a 
controversial message, but such methods of expression are 
nevertheless subject to regulation.'' Id. Moreover, although 
the value of the individual's choice is ``unquestionably a 
matter of great importance,'' tolerance of flag burning will 
``tarnish that value.'' Id. at 322.
    Thus, S.J. Res. 40 would not reduce our freedoms under the 
Bill of Rights. Rather than posing a fundamental threat to our 
constitutional freedoms, the proposed amendment would nurture 
liberty. The Bill of Rights is a listing of the great freedoms 
our citizens enjoy. It is not a license to engage in any type 
of behavior one can imagine. The proposed amendment affirms the 
most basic condition of our freedom: our bond to one another in 
our creation of national unity. The amendment would leave it to 
individuals, in numerous other ways, to express their views. 
But the amendment affirms that there is some commitment to 
others, beyond mere obedience to the formal rule of law, that 
must be respected. It affirms that, without some aspiration to 
national unity, there might be no law, no constitution, no 
freedoms such as those guaranteed in the Bill of Rights.
    In addition, the amendment would be interpreted in light of 
the existing amendments and other constitutional provisions. 
When the 14th amendment was proposed, it could have been argued 
that Congress' power to enforce the equal protection clause 
might be used to undermine the first amendment right of free 
association. However, courts have been able to harmonize the 
1st and 14th amendments. Likewise, the 9th and 10th amendments 
have been reassessed in light of other constitutional 
provisions. The same would be true with a flag protection 
amendment. Experience justifies confidence that the courts 
would interpret the terms ``physical desecration'' and ``flag 
of the United States'' in light of general values of free 
    The proposed amendment is not intended to--and does not--
discriminate against specific messages or points of view. Those 
who desecrate the flag may be doing so to communicate any 
number of messages. They may be protesting a government policy 
or inactivity, or simply destroying the flag to get media 
attention. Laws enacted under the proposed amendment would 
apply to all such activity, whatever the message.
    This is a narrowly drawn amendment proposal, tailored to 
control a narrow area of the law. It would supersede two 
Supreme Court cases decided by 5-to-4 majorities. It is not 
self-executing, and thus would require an implementing statute. 
Moreover, S.J. Res. 40 is even more narrowly tailored than the 
proposal considered during the 104th Congress. In contrast to 
that amendment proposal, S.J. Res. 40 would authorize only 
Congress--not the States--to pass a statute to protect the flag 
from acts of physical desecration.
    Finally, among all the various forms of expression, only 
one can be regulated under the amendment: desecration. That 
regulation, moreover, could extend no further than a ban on 
one, and only one, extreme instance of this: physical 
desecration. Experience justifies confidence in our judicial 
system to distinguish between the numerous legitimate forms of 
communication and the act of physically desecrating a flag.
    The Supreme Court has made clear that not only may the 
Government sometimes regulate the content of speech, sometimes 
it should do so in order to protect the system of freedom of 
speech in general. The Supreme Court has affirmed this 
principle in several instances, refusing, for instance, to 
privilege speech that:

   First, is likely to incite an immediate, violent 
        response, such as face-to-face fighting words likely to 
        cause a breach of the peace, Chaplinsky v. New 
        Hampshire, 315 U.S. 568 (1942); or words likely to 
        incite a riot, Feiner v. New York, 340 U.S. 315 (1951).
   Second, threatens certain tangible, diffuse harm, 
        such as obscenity, which pollutes the moral 
        environment, Miller v. California, 413 U.S. 15 (1973); 
        Roth v. United States, 354 U.S. 476 (1957).
   Third, criticizes official conduct--i.e. libel--of a 
        public official, when the criticism is known to be 
        false and damages the official's reputation. In this 
        instance, the Court held that such speech should be 
        regulated since it is at odds with the premises of 
        democratic government, New York Times v. Sullivan, 367 
        U.S. 254, 270 (1964).

    The Court has said that utterances, such as those set out 
above, ``are no essential part of any exposition of ideas, and 
are of such slight social value as a step to truth that any 
benefit that may be derived from them is clearly outweighed by 
the social interest in order and morality.'' Chaplinsky v. New 
Hampshire, 315 U.S. 568, 572 (1942).
    As a consequence, there is no basis for the assertion that 
the amendment ``trumps'' or supersedes other parts of the 
Constitution. Such an assertion is a scare tactic. Nothing in 
the text of the amendment provides a basis for that fear. 
Opponents to the flag amendment raise this concern by citing 
two cases. The first is Smith v. Goguen, 415 U.S. 566 (1974), a 
case involving the void-for-vagueness doctrine of the due-
process clause of the 14th amendment. But there is no basis at 
all to suggest S.J. Res. 40 trumps the due-process clause of 
the 5th and 14th amendments. Nothing in the amendment suggests 
that result. Nor does this case suggest that flag statutes 
enacted pursuant to S.J. Res. 40 would not be subject to, or 
unable to withstand, due-process scrutiny.
    In Smith v. Goguen, the Court found a portion of a 
Massachusetts law void because it was unconstitutionally vague. 
The Court, however, did not reach first amendment issues. The 
Massachusetts statute made illegal publicly mutilating, 
trampling upon, defacing, or treating contemptuously the flag 
of the United States. The phrase ``treats contemptuously'' was 
the offending unconstitutionally vague phrase.
    Yet, in the very same opinion, the Court noted: ``Certainly 
nothing prevents a legislature from defining with substantial 
specificity what constitutes forbidden treatment of United 
States flags. The federal flag desecration statute * * * 
reflects a congressional purpose to do just that * * * [That 
statute reaches] only acts that physically damage the flag.'' 
415 U.S. at 582. The Court then quoted the Federal statute, as 
a flag statute surviving a due process, void-for-vagueness 
claim: ``Whoever knowingly casts contempt upon any flag of the 
United States by publicly mutilating, defacing, defiling, 
burning, or trampling upon it.''
    In other words, legislation under the flag amendment is 
subject to the void-for-vagueness doctrine. But that doctrine 
allows Congress and the States to prohibit contemptuous or 
disrespectful treatment of the flag so long as there is 
substantial specificity in spelling out what that treatment 
is--be it by burning, mutilating, defacing, trampling, and so 
    This amendment authorizes the very same language the Court 
cited from the Federal statute. Smith v. Goguen is not affected 
by this amendment, and casting contempt on the flag by physical 
acts survives a due-process vagueness challenge under that 
    Opponents raise similar concerns about the Supreme Court's 
decision in R.A.V. v. St. Paul, 112 S. Ct. 2538 (1992). The 
Committee, however, finds concern about S.J. Res. 40 in light 
of R.A.V. to be misplaced. Congress and the States are not 
authorized by the flag protection amendment to enact statutes 
banning physical flag desecration only by advocates of 
particular points of view. That is, for example, a legislature 
could not ban burning the flag by those who condemn an increase 
in military spending, but not ban such desecration by those who 
seek to protest what they believe to be inadequate military 
spending. See R.A.V. v. City of St. Paul [112 S. Ct. 2538 
    The judiciary has already determined that the first 
amendment does not protect libel. R.A.V. says: `` * * * the 
government may proscribe libel; but it may not make the further 
content discrimination of proscribing only libel critical of 
the government.'' [112 S. Ct. at 2543]. Similarly, S.J. Res. 
40, if ratified, will establish that the Constitution does not 
protect physical desecration of the flag. Congress and the 
States, having created power in the Government to proscribe 
flag desecration, R.A.V. then only requires that the Government 
not discriminate among flag desecrators based on the points of 
view they seek to dramatize by their particular physical 
desecration. Similarly, governments could not ban physical 
desecration of the flags by members of one race but not ban it 
when committed by members of other races, per the 5th and 14th 
    As further indication of the lack of merit to the 
administration's criticism that the flag amendment might 
supersede other parts of the Bill of Rights, consider the 16th 
amendment. It too is one sentence: ``The Congress shall have 
power to lay and collect taxes on income, from whatever source 
derived, without any regard to any census or enumeration.''
    This language, ratified in 1913, is remarkably similar to 
the flag amendment in that it says, without more, that a 
legislative body, ``shall have power'' to do something. Do the 
critics of S.J. Res. 40 doubt the applicability of the fourth 
and eighth amendments to legislation enacted under the income 
tax amendment? The Committee assumes not.

      2. congress has a compelling interest in protecting the flag

    The Government's legitimate interest in protecting the flag 
has three main components:

a. Preserving the values embodied by the flag

    Protecting the flag from physical desecration preserves the 
values of liberty, equality, and personal responsibility that 
Americans have passionately defended and debated throughout our 
history and which the flag uniquely embodies. It is commonly 
accepted today that the traditional values upon which our 
Nation was founded, and which find tangible expression in our 
respect for the flag, are essential to the smooth functioning 
of a free society. Flag protection highlights and enhances 
these values and thus helps to preserve freedom and democratic 

b. Enhancing national unity

    The Government has a fundamental interest in protecting the 
most basic condition of freedom: our bond to one another in our 
aspiration for national unity. With traditional unifying 
elements of American language, culture, and heritage fraying, 
the flag remains a single unifying embodiment of our unceasing 
struggle for liberty and equality and our basic commitment to 
others. The flag affirms that without some desire for national 
unity, a free people and constitutional government cannot long 

c. Protecting an incident of our national sovereignty

    Finally, the flag is an important incident of our national 
sovereignty. The United States--like many other nations--
displays the flag to signify national ownership and protection. 
By pronouncements in the earliest years of the Republic, the 
Framers of the Constitution made clear that the flag, and its 
physical requirements, related to the existence and sovereignty 
of the Nation and that insults to the flag were matters of 
great national concern that warranted strict punitive action. 
James Madison, for instance, stated that desecration of the 
flag is ``a dire invasion of sovereignty.'' Letter from 
Secretary of State James Madison to Pennsylvania Governor 
McKean (May 11, 1802). Thomas Jefferson, moreover, considered 
violation of the flag worthy of ``systematic and severe course 
of punishment.'' Writings of Thomas Jefferson 49 (mem. ed. 

 3. s.j. res. 40 will restore to congress the power to enact a statute 
       prohibiting the physical desecration of the american flag

    Some critics of S.J. Res. 40 suggest that passage is 
unnecessary because ``governmental power to legislate in this 
area * * * always has been assumed to exist.'' (Id. at 4). The 
Committee finds it odd that some continue to advocate that 
Congress currently possess, notwithstanding Johnson and 
Eichman, the legislative power that the Supreme Court so 
decisively and permanently prevented it from exercising in 
those two very cases.
    Indeed, the Supreme Court in Texas v. Johnson stated, 
``There is * * * no indication--either in the text of the 
Constitution or in our cases interpreting it--that a separate 
juridical category exists for the American flag alone.'' (491 
U.S. at 417). Simply put, this amendment creates that 
``separate juridical category'' for the flag in the 
Constitution's text, and grants the power to prohibit physical 
desecration of the flag the Supreme Court took away in 1989. 
Indeed, any other interpretation of the amendment renders it 
    Similarly, on July 8, 1998, Professor Parker told the 
Committee that Congress could not remedy flag desecration by 

          I think it is as clear as anything can be in law that 
        the answer to that is no, sir. Because the crux of the 
        Court's decision was this idea that the flag represents 
        just one point of view on a level and in competition 
        with others and that government therefore may not take 
        sides in favor of the flag, it is simply impermissible 
        to pass any statute which specifically protects the 
        flag. Of course, there are already statutes prohibiting 
        certain acts, but you may not pass a statute according 
        to the Court, that specifically protects the flag.

           *         *         *         *         *

          Any statute which specifically focused on the flag 
        and protected it as a symbol embodying certain value of 
        national community would be seen by the Supreme Court, 
        I think mistakenly, as not content-neutral. There is 
        unfortunately simply no way out. I think it is to 
        Congress' great credit that Congress tried the 
        statutory route and immediately was slapped down by the 
        same 5-to-4 majority of the Justices.

(Testimony of Prof. Richard Parker, July 8, 1998, at 106-107.)

4. the terms ``physical desecration'' and ``flag of the united states'' 
          are precise enough for inclusion in the constitution

    The proposed amendment is not self-executing, so a statute 
would need to be enacted under the amendment that, presumably, 
would define terms, set penalties and further define actions 
that would be proscribed. Moreover, judges, law enforcement 
officials and juries would interpret and refine the law in this 
area, similar to the development of any new area of the law. 
Prior to the Texas v. Johnson decision, 48 States had laws 
prohibiting flag desecration, and the history of prosecutions 
in this area does not suggest abuse by prosecutors or any other 
sector of the judicial system. See e.g., State v. Royal, 113 
N.H. 224, 229, 305 A.2d 676, 680 (1973); State v. Mitchell, 32 
Ohio App. 2d 16, 30, 288 N.E.2d 216, 226 (1972); State v. 
Waterman, 190 N.W.2d 809, 811-812 (Iowa 1971). In the case of a 
statute adopted under the proposed amendment, the judicial 
system would interpret ``physical desecration'' and ``flag of 
the United States'' in light of general values of free speech. 
These are the types of terms that raise issues of fact and 
degree, context and intent, comparable to questions that courts 
resolve, year in and year out, under practically every other 
constitutional provision. Experience justifies confidence in 
our judicial system with respect to answering these questions.
    The Senate in the 105th Congress should not subject S.J. 
Res. 40, which authorizes legislation protecting the American 
flag, to a higher standard than the Framers subjected the terms 
of the Constitution and the Bill of Rights in the Philadelphia 
Convention and in the First Congress. The terms of the flag 
protection amendment are at least as precise, if not more so, 
than such terms as ``unreasonable searches and seizures''; 
``probable cause''; ``speedy * * * trial''; ``excessive bail''; 
``excessive fines''; ``cruel and unusual punishment''; ``due 
process of law''; ``just compensation''--all terms from the 
Bill of Rights. Similarly, the 39th Congress was not deterred 
from the inclusion of the term ``equal protection of the laws'' 
in the 14th amendment by concerns of alleged vagueness. None of 
these terms are self-executing. All have been eventually 
explicated by the judiciary. Moreover, we should not lose sight 
of the fact that all the flag protection amendment does is 
authorize Congress to enact implementing legislation. Congress 
will implement the flag protection amendment with the 
specificity of statutory language which itself, as mentioned 
earlier, will be subject to constitutional requirements.
    Second, the Committee does not consider ambiguous the word 
``desecrate,'' which in turn is modified by the word 
``physically.'' The term ``desecrate'' means to treat with 
contempt, to treat with disrespect, to treat with profanity, or 
to violate the sanctity of something. The Committee does not 
believe these terms are too difficult for our legislatures and 
courts to comprehend. Congress had no difficulty in utilizing 
its constitutional power to legislate sensibly on this subject 
in 1968. Legislative bodies will define what treatment they 
believe constitutes desecration. Accidental acts are not 
reachable. As Professor Parker testified:

          It's useful to keep in mind that this word--like any 
        number of others in the constitutional text--is a term 
        of art. It has no religious connotation. The 
        Constitution of Massachusetts, for instance, provides 
        that the right to jury trial ``must be held sacred'' 
        [Constitution of the Commonwealth of Massachusetts, pt. 
        I, art. 15], and no one reads that as a theological 
        mandate. The question for courts interpreting the 
        proposed amendment would be: what sorts of physical 
        treatment of the flag are so grossly contemptuous of it 
        as to count as ``desecration?'' This is the type of 
        question--raising issues of the fact and degree, 
        context, and purpose--that the courts resolve year in 
        and year out under the constitutional provisions. Thus, 
        there is nothing radical or extreme about the flag 
        amendment--unless it is the rhetoric igniting and 
        fueling all kinds of fears purveyed by some of its 

    Furthermore, the flag protection amendment does not 
authorize legislation which prohibits displaying or carrying 
the flag at meetings or marches of any group--be they Nazis, 
Marxists, or anyone else. The amendment does not authorize 
legislation prohibiting derogatory comments about the flag or 
cursing the flag, nor does it authorize a prohibition on 
shaking one's fist at the flag or making obscene gestures at 
the flag, whether or not such gestures are accompanied by 
words. The amendment does not authorize legislation penalizing 
carrying or displaying the flag upside down as a signal of 
distress of flying it at half mast on days other than on 
officially designated occasions.
    Significantly, the flag protection amendment does not 
disturb Congress' power alone to determine the design of the 
flag of the United States. Congress has that authority under 
Title 4, U.S.C. 1 and 2. Assuming that the amendment is 
ratified, Congress is still free to change the design of the 
flag, but no State now or in the future will be able to 
determine the design of the American flag.

     5. possible examples of legislation implementing s.j. res. 40

    While the Committee does not believe that congressional 
consideration of a constitutional amendment empowering Congress 
and the States is the appropriate time to discuss the details 
of implementing legislation, the Committee notes two of the 
possible legislative models.
    For example, the term ``flag of the United States'' could 
be defined at the narrowest as just a cloth or other substance 
or material readily able to be flown, waved, or displayed with 
the characteristics as set out in the United States Code 
sections mentioned earlier. The flag, of such characteristics 
and material, could also be defined to be of any size of 
dimensions. That would be up to legislative bodies to 
    Another possible definition available to Congress would be 
to include in the definition of the flag something a reasonable 
person would perceive to be a flag of the United States meeting 
the design set forth in the United States Code, and capable of 
being waved, flown, or displayed, regardless of whether it is 
precisely identical to that design. Thus, under such a 
definition, for example, physically desecrating a flag with 48 
stars, or 12 or 14 stripes, could be covered. Congress may wish 
to use such a definition because the reasons we would ban 
burning, defacing, or mutilating an American flag obtained when 
the flag being burned or mutilated has 48 stars, for example, 
and people cannot readily tell the difference between it and a 
50-star flag. When examining these two flags closely, they look 
indistinguishable. For example, it may be possible that the 
defendants in the Johnson and Eichman cases may have burned 
flags with less than 50 stars or 13 stripes.
    The choice of how to define what to cover under the term 
``flag of the United States'' should be left up to the sensible 
judgment of the American people, as it had been for 200 years 
before the Johnson decision.

                 6. parade of horribles are an illusion

    As to the parade of horribles opponents invoke in 
opposition to the amendment, there is a straightforward answer. 
For many years, 48 States and Federal Government had flag 
protection statutes on the books. Yet, there were no 
insuperable problems of administration, enforcement, or 
adjudication under those statutes.
    Testing the hypotheticals posed by opponents of this 
amendment, such as the status of bathing suits, paper cups, and 
napkins, each bearing a picture of the flag, against the 
history of enforcement of flag desecration statutes, renders 
these hypotheticals no basis for opposing the amendment. This 
is especially true in light of a string of judicial decisions 
since these statutes were first enacted: extending the first 
amendment's free speech protection against the actions of the 
States; requiring substantial specificity in what is made 
illegal; and effectively prohibiting discrimination between 
desecrators based on viewpoint. It is also especially true in 
light of the universal understanding that words alone casting 
contempt on the flag cannot be actionable under the flag 
protection amendment.
    The Committee believes, moreover, that States and Congress 
will legislate with care, and with the specificity required by 
the Constitution. There certainly is a greater awareness of 
concerns raised by opponents of legal protection of the flag 
from physical desecration--however exaggerated many of the 
hypotheticals are--than existed at the time most of the 49 pre-
1989 statutes were enacted.
    Reliance on the parade of horribles to oppose the amendment 
would reflect the Senate's fundamental distrust of the people 
and of Congress itself, to enact reasonable flag protection 
    As Prof. Richard Parker stated:

          Finally, the slippery slope argument--pass this 
        amendment and who knows what will come next--suggests 
        either a stunning lack of confidence in the Congress 
        itself, which is empowered to act by this amendment, or 
        a failure to understand how hard it is to amend the 
        Constitution. Eleven thousand amendments have been 
        proposed, 27 have been ratified. The slope is uphill, 
        not downhill.

(Testimony of Richard Parker, before the U.S. Senate Judiciary 
Committee, July 8, 1998.)

    The Committee is mindful that it is the Constitution we are 
proposing to amend, not a code of statutes. Drafting the 
language of a flag protection amendment too narrowly runs a 
serious risk of thwarting the American people's ability to 
legislate protection of their flag from the range of acts or 
conduct which might physically misuse, or cast contempt 
physically on, the flag. Thus, a constitutional amendment so 
specific as to authorize, for example, the prohibition of 
burning or trampling the flag leaves the American people 
powerless to prohibit the defacing or mutilating of the flag. 
No supporter of protecting the American flag from physical 
desecration wishes to amend the Constitution twice to achieve 
that purpose.

  7. the flag protection amendment is no precedent whatsoever for any 
               other constitutional amendment or statute

    There is no ``slippery slope'' here, as well. The flag 
protection amendment is limited to authorizing States and the 
Federal Government to prohibit physical desecration of only the 
American flag. It serves as no precedent for any other 
legislation of constitutional amendment on any other subject or 
mode of conduct, precisely because the flag is unique. 
Moreover, the difficulty in amending the Constitution serves as 
a powerful check on any effort to reach other conduct, let 
alone speech, which the Supreme Court has determined is 
protected by the first amendment.
    It is not the ``thought we hate'' which this amendment 
would allow Congress and the States to prohibit, but rather, 
one narrow method of dramatizing a viewpoint--one form of 
conduct. No speech, and no conduct other than physical 
desecration of the American flag, can be regulated under 
legislation authorized by the amendment.
    Some critics of the amendment ask, is our flag so fragile 
as to require legal protection? The Committee has explained why 
it believes our national symbol should be legally protected. 
The better question is--is our freedom of expression so fragile 
in this country as to be unable to withstand the withdrawal of 
the flag from physical desecration? Of course not. Unpopular 
ideas have many avenues of expression, including the use of 
marches, rallies, picketing, leaflets, placards, bullhorns, and 
so very much more.

8. the american flag deserves legal protection regardless of the number 
                  of flag desecrations in recent years

    Opponents of this resolution counter that in light of the 
very few isolated instances of flag desecration, the flag is 
amply protected by its unique stature as an embodiment of 
national unity and ideals.
    The Committee does not believe there is some threshold of 
flag desecrations during a specified time period necessary 
before triggering congressional action. Certainly, critics of 
the amendment cite no such threshold. If it is right to empower 
the American people to protect the American flag, it is right 
regardless of the number of such desecrations. And no one can 
predict the number of such desecrations which may be attempted 
or performed in the future.

9. a ``content neutral'' constitution amendment is wholly inappropriate

    A few critics of S.J. Res. 40 believe that all physical 
impairment of the integrity of the flag, such as by burning or 
mutilating, must be made illegal or no such misuse of the flag 
should be illegal. This ``all or nothing'' approach flies in 
the face of nearly a century of legislative protection of the 
flag. It is also wholly impractical.
    In order to be truly ``content neutral,'' it has been 
argued, such an amendment must have no exceptions, even for the 
disposal of a worn or soiled flag. Once such an exception is 
allowed, the veneer of content neutrality is stripped away. If 
such an exception is not permitted, however, and burning a worn 
or soiled flag for disposal purposes is made illegal, the 
American people would be subjected to the unacceptable choice 
of letting worn or soiled flags literally accumulate, or 
breaking the law by disposing of them in a manner already 
designated by Congress in the flag code: ``The flag, when it is 
in such condition that it is no longer a fitting emblem shown 
for display, should be destroyed in a dignified way, preferably 
by burning.'' 36 U.S.C. 176(k). While the flag code is legally 
unenforceable, the flag code represents a traditional and 
commonly held view of proper disposal of flags no longer fit 
for display--one followed by the National Park Service, for 
example (The Sun, July 4, 1995).
    The threshold question that must be answered by proponents 
of this suggestion is whether anyone really wants a ``neutral'' 
flag protection statute. Does anyone really want to protect the 
physical integrity of all American flags, regardless of the 
circumstances surrounding the prohibited conduct? Certainly, 
the constitutional scholars suggesting a ``neutral'' flag 
protection amendment do not, for they advance the idea only as 
a lesser evil than the Flag Protection Amendment. Nor are 
supporters of the proposed Flag Protection Amendment likely to 
be persuaded that a ``neutral'' alternative would be 
preferable. The problem is that a genuinely ``neutral'' flag 
protection measure is not practical or effective.
    The act of burning an American flag is not inherently evil. 
Indeed, the Boy Scouts of America have long held that an 
American flag, ``when worn beyond repair'' should be destroyed 
``in a dignified way by burning.'' Boy Scout Handbook at 422 
(9th ed.). Similarly, Congress had prescribed [such disposal 
for flags no longer fit for display]. Nor is the respectful 
disposition of an old flag the only occasion on which burning a 
flag might be entirely proper. The old soldier whose last wish 
is to be cremated with a prized American flag fast against his 
breast would be deserving of respect and admiration, rather 
than condemnation.
    In contrast, the defendant in Johnson engaged in plainly 
offensive conduct not simply because he burned an American 
flag, but because of the manner in which he burned it. Yet, a 
truly neutral flag protection statute would require us to be 
blind to the distinction between the conduct of Gregory Lee 
Johnson and his comrades and the conduct of a Boy Scout troop 
reverently burning an old and worn American flag. It would also 
reach other forms of conduct that honor, rather than desecrate, 
the flag. If, rather than burning an American flag, Gregory Lee 
Johnson and his colleagues had heaped dirt upon it in some sort 
of anti-American burial ritual, their conduct would undoubtedly 
have violated not only the Texas flag desecration statute, but 
a ``neutral'' flag protection statute as well. A ``neutral'' 
flag protection statute, however, would also have reached and 
punished the conduct of the unidentified patriot who gathered 
up Johnson's charred flag and buried it in his backyard.
    Moreover, not only would a ``neutral'' flag protection 
statute prohibit conduct that should be praised rather than 
punished, it would fail to prohibit an infinite variety of 
public conduct that casts contempt upon the flag. Such a 
statute would prohibit only conduct that compromises the 
physical integrity of the flag. Conduct that is not physically 
destructive of the flag, no matter how openly offensive and 
disrespectful it may be would presumably not be reached. Thus, 
affixing an American flag to the seat of one's pants or 
simulating vulgar acts with a flag would not come within such a 
    Thus, a ``neutral'' flag protection statute is at once too 
broad, since it would prohibit conduct that no one wants to 
prohibit, and too narrow, since it would permit conduct that 
few people want to permit. The proposal therefore simply does 
not mesh with the public sentiment that animated the passage of 
48 State flag desecration statutes and a similar measure by the 
Federal Government, that led to the prosecution of Gregory Lee 
Johnson under the Texas flag desecration law, that provoked the 
extraordinary public outcry at the Supreme Court's reversal of 
Johnson's conviction, and that inspired this hearing.
    A content neutral amendment would forbid an American combat 
veteran from taking an American flag flown in battle and having 
printed on it the name of his unit and location of specific 
battles, in honor of his unit, the service his fellow soldiers, 
and the memory of the lost.
    The Committee does wish to empower Congress to prohibit the 
contemptuous or disrespectful physical treatment of the flag. 
The Committee does not wish to compel Congress to penalize 
respectful treatment of the flag. A constitutional amendment 
that would treat the placing of the name of a military unit on 
a flag as the equivalent of placing the words ``Down with the 
fascist Federal Government'' or racist remarks on the flag is 
not what the popular movement for protecting the flag is all 
about. The Committee respectfully submits that such an approach 
ignores distinctions well understood by tens of millions of 
Americans. Moreover, a constitutional amendment equating the 
ceremonial, reverential disposal of a worn American flag by 
burning, with the contemptuous burning of the flag to dramatize 
this or that viewpoint is as impractical as it is over broad.
    Moreover, never in the 204 years of the first amendment has 
the free-speech clause been construed as totally ``content 
neutral.'' Whether freedom of speech is, in fact, robust and 
wide-open does not depend solely, or even primarily, on case-
by-case adjudication by the courts. It depends most of all on 
conditions of culture. First, it depends on the willingness and 
capacity of people to express themselves energetically and 
effectively in public. Second, it depends on acceptance as well 
as tolerance, official and unofficial, of an extremely wide 
range of viewpoints and modes of expression. And third, it 
depends on adherence to very basic parameters that, like 
constitutional provisions in general, help structure democratic 
life the better to release its energies.
    Indeed, despite talk of ``content-neutrality,'' the 
following principle of constitutional law is very clear: 
Government sometimes may sanction you for speaking because of 
the way the content of what you say affects other people. The 
Supreme Court understands the principle to rule out speech that 
threatens to cause imminent tangible harm: face-to-face 
fighting words, incitement to violation of law, shouting 
``fire'' in a crowded theater. And it does not stop there. It 
understands the principle, also, to rule out speech that 
threatens certain intangible, even diffuse, harms. It has, for 
instance, described obscenity as pollution of the moral 
``environment.'' But what about ``political'' speech critical 
of the Government? Isn't there a bright line protecting that, 
at least so long as no imminent physical harm is threatened? 
The answer is: No. The Court has made clear, for instance, that 
statements criticizing official conduct of a public official 
may be sanctioned if they are known to be false and damage the 
reputation of the official. There has been no outcry against 
this rule. It was set forth by the Warren Court--in an opinion 
by Justice Brennan, the very opinion that established freedom 
of speech as ``robust and wide-open.'' [New York Times v. 
Sullivan, 376 U.S. 254 (1964)]. It has been reaffirmed ever 

                       IV. VOTE OF THE COMMITTEE

    On June 24, 1998, with a quorum present, by rollcall vote, 
the Committee on the Judiciary voted on a motion to report 
favorably S.J. Res. 40. The motion was adopted by a vote of 11 
yeas and 7 nays, as follows:
        Yeas                          Nays
Hatch                               Leahy
Thurmond                            Kennedy
Grassley                            Biden
Specter                             Kohl
Thompson                            Feingold
Kyl                                 Durbin
DeWine                              Torricelli

                        V. TEXT OF S.J. RES. 40

  JOINT RESOLUTION proposing an amendment to the Constitution of the 
United States authorizing Congress to prohibit the physical desecration 
                    of the flag of the United States

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

                              ``Article --

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

                           VI. COST ESTIMATE

    The Congressional Budget Office has supplied the Committee 
with the following report estimating the proposed amendment's 
potential costs:

          By itself, this resolution would have no impact on 
        the federal budget. If the proposed amendment to the 
        Constitution is approved by the states, then any future 
        legislation prohibiting flag desecration could impose 
        additional costs on U.S. law enforcement 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. 
        Because enactment of S.J. Res. 40 would not affect 
        direct spending or receipts, pay-as-you-go procedures 
        would apply.

(Congressional Budget Office, ``Cost Estimate, S.J. Res. 40,'' 
letter dated June 29, 1998.)


    Pursuant to paragraph 11(b), rule XXVI of the Standing 
Rules of the Senate, the Committee, after due consideration, 
concludes that Senate Joint Resolution 40 will not have direct 
regulatory impact.

                         DURBIN, AND TORRICELLI

                            I. Introduction

 a. the flag of the united states is a source of pride for the entire 

    The central fact that keeps re-emerging from the hearings 
and debate on this issue is the deep love with which nearly all 
Americans regard the flag, and the utter revulsion with which 
we regard those who would, for instance, burn the flag with 
contempt. Discussion of the flag evokes a flood of often highly 
personal memories of the flag and those who have fought and 
died to defend the freedom and the nation for which it stands. 
We recall with deep pride the youth of this country who have 
given their lives to bring the freedoms that we take for 
granted to other countries less blessed with liberty.
    All agree that we should honor their sacrifice. The central 
question before the Congress now is not whether we respect 
their sacrifice. It is whether we will honor their sacrifice by 
upholding the freedom for which they fought or whether we will 
diminish that freedom in a symbolic gesture.
    This is the rare occasion that tests our conception of who 
we are as Americans. Are we a people who have the confidence 
and courage to tolerate the statement of contempt for something 
we hold dear? Or are we so insecure that we must silence those 
whose contempt would anger or frighten us? Justice Robert 
Jackson gave us the answer in words that have served us well 
for over half a century now:

          If there is any fixed star in our constitutional 
        constellation, it is that no official, high or petty, 
        can prescribe what shall be orthodox in politics, 
        nationalism, religion, or other matters of opinion or 
        force citizens to confess by word or deed their faith 

   b. isolated flag burnings do not diminish the unwavering respect 
               americans hold for the united states flag

    Not one person has testified that they respect the flag 
less because a protester has burned it, sewed it in the seat of 
his pants, or misused it in a work of ``art.''. Not one person 
has testified that they love our country less because Americans 
are free to express themselves in this way. There is not one 
single indication that any act of flag-burning has lessened the 
respect that any American has for the flag or for our country. 
In fact, as Professor Robert Justin Goldstein observed, ``the 
main result of incidents of flag desecration is to boost 
feelings of patriotism.''
    The notion propounded by the Majority Report that our 
national unity is threatened by flag burning is at once 
nonsensical and insulting. The Majority Report urges that (1) a 
system of free speech requires a community, (2) that a 
community requires a unifying symbol, (3) that the flag is our 
unifying symbol, so that (4) we must punish flag protestors in 
order to have free speech. By the same ``logic,'' there has 
been no free speech in America since the Johnson decision and 
that there can be no free speech between us and Canadians, for 
example, who do not share our flag. This is nonsense. In fact, 
the American community that underlies the free speech we enjoy 
can be found deep in the bedrock of our shared history, and not 
in any one symbol.
    Our respect for the flag, for this country and for our 
abundant freedoms is far too strong to be shaken by the 
occasional acts of hooligans. When the rare individual burns a 
flag, it does not diminish the respect for the flag or for our 
country. It would be pathetic if our love of country or respect 
for its fundamental principles was so weak that it could be 
diminished by such an act. We know that it is not.
    By the same token, an amendment to the Constitution can do 
nothing to increase our respect for the flag or for our 
country. Senator Feingold quoted Keith Kreul, a former national 
commander of the American Legion:

          While all good Americans are appalled by flag 
        desecrations, we must keep our perspective and not 
        initiate an action that results in a dangerous 
        precedent. A patriot cannot be created by legislation. 
        Patriotism must be nurtured in the family and in the 
        educational process. Attempts to bestow honor by 
        government decree upon the flag are an idle myth and 
        must not prevail.

(Transcript June 24, 1998, at 15.) We respect and love our 
country for what it is, not because we are told to respect it. 
We do not love our country because we would be punished if we 
did not.

     c. the sacrifices of american veterans transcend mere symbols

    Nor can the sacrifice and achievement of the brave soldiers 
who gave their lives for the freedom the flag represents be 
honored or increased by a constitutional amendment. To believe 
so is to diminish their sacrifice. Abraham Lincoln said it 

          But in a larger sense, we cannot dedicate, we cannot 
        consecrate, we cannot hallow this ground. The brave 
        men, living and dead who struggled here have 
        consecrated it far above our poor power to add or 
        detract. The world will little note nor long remember 
        what we say here, but it can never forget what they did 
        here. It is for us the living rather to be dedicated 
        here to the unfinished work which they who fought here 
        have thus far so nobly advanced. It is rather for us to 
        be here dedicated to the great task remaining before 
        us--that from these honored dead we take increased 
        devotion to that cause for which they gave the last 
        full measure of devotion--that we here highly resolve 
        that these dead shall not have died in vain, that this 
        nation under God shall have a new birth of freedom, and 
        that government of the people, by the people, for the 
        people shall not perish from the earth.

It was not for a flag that those soldiers fought and died, it 
was for the freedom that Lincoln so eloquently proclaimed. 
Nothing that we do can further exalt their sacrifice. Nothing 
that any protester can do can diminish it.
    Senator Leahy underlined the difference between symbols of 
our freedom and that freedom itself:

          The truly precious part of that legacy does not lie 
        in outward things--in monuments or statues or even 
        flags. All that these tangible things can do is remind 
        us of what is precious. The truly precious thing is our 
        liberty. The thing of value is our freedom.
          If some disaster were to sweep away all of the 
        monuments in this country, the Republic would survive, 
        just as strong as ever.
          But if some other disaster, some failure of our 
        souls, were to sweep away the ideals of Washington, 
        Jefferson and Lincoln, then not all of the stone, not 
        all of the marble, not all of the flags in this world 
        would restore our greatness. Instead, they would be 
        mocking reminders of what we had lost.

It is our freedom, including most especially our freedom of 
speech, that we should devote our energies to protecting. It is 
more important to honor our veterans with substance rather than 

     d. we best honor our veterans by honoring our promises to them

    We dishonor our veterans when we fail ``to care for him who 
shall have borne the battle, and for his widow, and his 
orphan.'' It is thus with ineffable sadness that we note a 
pattern on the part of many to deny veterans their due. We note 
the Senate's vote during the debate on the Intermodal Surface 
Transportation Efficiency Act of 1998 (ISTEA) to shift $10.5 
billionworth of critical veterans funding in order to help pay 
for extravagant highway spending programs. The Senate revisited this 
raid on veterans' programs three times, in the budget resolution, in 
the IRS Reform legislation, and in the VA/HUD Appropriations Bill. All 
three times, too many Senators voted against the veterans. If only a 
few more of those who now beat their chests about symbolic actions had 
voted for the veterans, the necessary $10.5 billion in funding for 
veterans would have been assured.
    The Senate has had numerous opportunities to increase the 
funds in the Veteran Administration's medical care account. 
Hospitals are seeing more patients with less funding and staff, 
and it can take months to get a doctor's appointment. It is not 
mere symbolism to fund those hospitals.
    Since the end of the Cold War, as military bases close, 
military retirees who relied on the base hospitals for space-
available free medical care are losing access to that care. 
Many of those service members retired near military bases 
specifically so that they could enjoy the free medical care 
they were promised, but now have to find health care in the 
marketplace. We could give military retirees access to the 
Federal Employee Health Benefit (FEHB) program that all other 
federal employees, including Senators, enjoy. If we truly wish 
to honor our veterans, we should give them more than symbols, 
more than ``mocking reminders'' of what we deny them.

II. There is No Evidence To Justify Amending the Bill of Rights for the 
                   First Time in Our Nation's History


    James Madison, a great Framer of the Constitution, told 
posterity that amendments should be limited to ``certain great 
and extraordinary occasions.'' It is distressing to find his 
advice so unheeded that there are more than 100 proposed 
constitutional amendments pending before the 105th Congress, 
but reassuring to recall that since Madison spoke, although 
some 11,000 amendments have been offered, only 17 have been 
adopted since the adoption of the Bill of Rights.
    Senate Joint Resolution 40 is offered in direct response to 
Supreme Court decisions in Texas v. Johnson, 491 U.S. 397 
(1989) and United States v. Eichman, 496 U.S. 310 (1990). In 
our system of carefully balanced powers, it is most unusual to 
overturn decisions of the Nation's arbiter. On at most four 
occasions in the history of this country has a constitutional 
amendment been adopted in response to a decision of the Supreme 
Court.1 Significantly, two of these Amendments, the 
Fourteenth and Twenty-Sixth, expanded the rights of Americans, 
while two involved the mechanics of government. Senate Joint 
Resolution 40 would be the first amendment to the Constitution 
that would infringe on the rights enjoyed by Americans pursuant 
to the Bill of Rights.
    \1\ Chisholm v. Georgia, 2 Dall. 419 (1793) prompted the adoption 
of the Eleventh Amendment bar to suits in federal courts against States 
by citizens of other States or by citizens or subjects of foreign 
jurisdictions. In 1868, the Fourteenth Amendment arguably was adopted 
in response to the Dred Scott decision, Scott v. Sanford, 19 How. 393 
(1857), although the introduction of the Black Codes following the 
Civil War likely was the true catalyst. In 1913, the Sixteenth 
Amendment was adopted to permit Congress to levy a tax on incomes after 
the Court's decision in Pollock v. Farmers' Loan & Trust Co., 157 U.S. 
429 (1895). Finally, the Twenty-Sixth Amendment was a response to the 
decision in Oregon v. Mitchell, 400 U.S. 112 (1970) that Congress 
lacked the power under Article I to lower the voting age to 18 in State 
as well as federal elections.
    Worse, the infringement would fall on the First Amendment, 
the cornerstone and foundation of all of our rights, of which 
we must be especially protective. As Senator Leahy said:

          All of our freedoms, all of our liberties rest on the 
        First Amendment. It is the granite of democracy, our 
        bedrock. Without the right to speak out all of our 
        other rights are only so much paper. Without the right 
        to assemble and petition, you literally cannot fight 
        City Hall, let alone the State legislature or the 
        Congress or the IRS. You're stuck. Without the freedom 
        to worship or not, unmolested, there is a gaping void 
        at the very core of life.

We should observe special caution in approaching limits on the 
First Amendment. This unprecedented use of the Constitution of 
the United States to limit rather than expand the liberties of 
ordinary Americans defies the long established principle that 
the Constitution is a limitation on government and not on 
    In Federalist No. 43, James Madison wrote that the 
Constitution establishes a balanced system for amendment, 
guarding ``equally against that extreme facility, which would 
render the Constitution too mutable, and that extreme 
difficulty, which might perpetuate its discovered faults.'' The 
concern of the Framers that amendments would come too 
frequently is profoundly conservative, in the best sense of 
that word, as expressed in Federalist No. 49.

        [A]s every appeal to the people would carry an 
        implication of some defect in government, frequent 
        appeals would, in great measure, deprive the government 
        of that veneration which time bestows on everything and 
        without which perhaps the wisest and freest governments 
        would not possess the requisite stability.

The horror with which the Framers might regard the 11,000 
amendments offered in our history, or the more than 100 offered 
in the 105th Congress alone, no doubt is offset by the wisdom 
of the Nation's and States' elected representatives in refusing 
to adopt more than 17 amendments since the Bill of Rights. An 
amendment to the Constitution under the present circumstances 
would be precisely the sort of act against which the Framers 
warned us. Common sense is enough to tell us that this is not a 
``great and extraordinary'' occasion that justifies invoking 
the awesome power of amending our fundamental charter. 
Constitutional amendments are for resolving the profound and 
structural issues of government. Even if there were a problem 
of flag desecration in this country, amending the Constitution 
would still be a totally disproportionate response. To propose 
an amendment when in fact there is no problem betrays a woeful 
and unworthy loss of perspective.
    Rather than face the solemn responsibility of justifying an 
amendment to the Constitution, the proponents of Senate Joint 
Resolution 40 have suggested that Members of the Senate 
abdicate their responsibility to exercise their judgment and 
simply pass the buck to the State legislatures. This argument 
is totally contrary to the conservative conception of amendment 
that our Constitution establishes. The Constitution 
intentionally makes it difficult to pass amendments because 
they are to be permanent and fundamental. Supermajorities are 
required in both Houses and among the ratifying States: no 
amendment should pass unless every one of these levels of 
government overwhelmingly supports it. Our system is undermined 
if each institution of government does not exercise independent 
judgment. The whole intention is to be conservative, by 
securing a series of responsible, considered judgments along 
the way. If the institutions of government with responsibility 
for amending the Constitution start deferring to each other 
instead of acting independently, amendments will start coming 
quick, easy, and impulsively. While the Majority Report denies 
that passage of this amendment will create a ``slippery slope'' 
for future thoughtless amendments, that is precisely what they 
invite by such an abdication of responsibility.
    In support of this unsound argument, the Majority Report 
uses a statement by MSGT. Marvin Stenhammer in a way that is so 
unfair to this disabled combat veteran that we must correct the 
record here. The Majority Report takes out of context part of 
MSGT. Stenhammer's response to what the Majority 
euphemistically describes as ``close questioning by Chairman 
Hatch,'' and what certainly was unusual questioning to be 
directed at an American soldier. While quotation out of context 
may not be as unusual as it should be, it is especially 
inappropriate treatment of a layperson, a veteran of foreign 
wars who has come to the Congress to petition for the redress 
of grievances and to preserve and protect the rights we enjoy 
under the Constitution.
    MSGT. Stenhammar is a permanently disabled veteran, a 
paratrooper who has served the United States in harm's way on 
four continents. In addition to his combat service, MSGT. 
Stenhammar often was assigned to assist in nation-building, in 
the training of foreign soldiers and nationals in ``liberty, 
justice, the ideals of the Bill of Rights and the ideals that 
America truly stands for.'' (Testimony at 46.) He takes those 
ideals seriously. His opportunity to observe foreign lands 
where peaceful protest is not allowed has made him cherish our 
own rights under the First Amendment, and has made him a ``true 
conservative, Jeffersonian, democrat, and libertarian.'' 
(Stenhammar Testimony at 47.)
    In response to an earlier question from Senator Grassley 
about leaving the issue to the popular will, MSGT. Stenhammar 

          There were over 30 States in the United States whose 
        conservatives and/or lobbyists urged those State 
        legislatures to pass a beat-up-a-flag-burner amendment 
        so that * * * it would be a $5 or $10 fine if you 
        punched somebody out for burning a flag. I just can't 
        imagine that in America, with all that that means, that 
        we would go so far as not to allow people to peacefully 

In response to the ``close'' questioning by the Chairman, MSGT. 
Stenhammar did reply, and as quoted in the Majority Report, ``I 
would certainly support the will of the people. I mean, that is 
what democracy is all about.'' MSGT. Stenhammar continued, 
after an interruption by Chairman Hatch failed to cut him off, 
with his full response, which the Majority Report does not 

          But I would caution that two great Founders said that 
        majority rules, but only in a society of fools, and 
        that when passion governs, passion always governs 
        poorly. We need to take a deep breath and use our brain 
        on this issue and remove our sentimental values of this 
        great symbol and really think from our head, what does 
        this actually say.
          I mean, I can't stress enough that, you know, I mean 
        in Asheville, North Carolina--it is a great town, but 
        twice a year the Klan marches through downtown, and 
        once or twice a year they burn crosses. Why are we 
        going to protect that and yet not protect people who 
        are peacefully protesting by burning a flag?

(Stenhammar Testimony at 79-80) The question was left hanging, 
without response. There was no more close questioning of MSGT. 

b. the proponents have failed to provide any evidence that incidents of 
         flag burning justify an amendment to the constitution

    Flag burning is rare.
    That simple fact keeps re-emerging from the hearings of 
various proposals over the years to prohibit the practice. 
There is no crisis to which we should respond with an amendment 
to our fundamental law. Professor Robert Justin Goldstein, the 
author of the leading historical studies of flag-burning, 
testified that there had been about 200 flag burning incidents 
in the entire history of the country, or less than one per 
year. Indeed, the principal incitement to flag burning appears, 
from all of the evidence, to be the very efforts to make it 
illegal. Based on past experience, then, an amendment such as 
that proposed actually will lead to an increase in the number 
of flag-burning incidents, as well as an increase in the 
variety of distasteful acts involving the flag which no doubt 
will be committed to test the vague and uncertain boundaries of 
any new law.
    As Professor Goldstein noted, ``We've had more than twice 
as many flag burnings since this became a front page issue in 
1989 than in the entire history of the American republic.'' 
Professor Goldstein has established that the number of 
incidents peaked during the period after the 1989 Flag 
Protection Act was in effect, and that the rate of incidents 
has more than tripled since the current effort to amend the 
Constitution was initiated. Even with the increase brought on 
by the agitation for bans on flag burning, the actual number of 
incidents remains exceedingly low. These facts are undisputed.
    While even one incident of flag burning certainly merits 
our condemnation and scorn, it just as certainly does not 
create a reason to amend our Constitution. It does not call on 
this Congress to be the first Congress in the history of the 
United States to limit the rights of Americans with a narrowing 
amendment to the Bill of Rights.

 c. the proponents have failed to state a clear course of action that 
         can only be put in place by a constitutional amendment

    To be more than the emptiest of promises, this Amendment 
will require some enforcement scheme, a specific statute that 
would outlaw certain acts as flag desecration, and permit other 
acts. The substance of this statute will determine just what 
this amendment will accomplish. The proponents of Senate Joint 
Resolution 40 assiduously have avoided a frank discussion of 
such substance.
    As if to emphasize the purely symbolic nature of Senate 
Joint Resolution 40, its proponents have failed to explain or 
suggest a credible system of punishment. The list of nations 
that do punish flag desecration is not inspiring: Nazi Germany, 
Cuba, China, Iran, and Iraq set the tone. As Senator Feingold 
noted, penalties range from one year of imprisonment in Cuba to 
10 years in Iran to life imprisonment at forced labor in Haiti. 
In the United States, the State of Montana has provided, and 
actually has imposed, a sentence of 10 to 20 years at hard 
labor for refusing to kiss a flag, and for orally belittling 
it. Ex Parte Starr, 263 Federal Reporter 145, 146-7 (1920).
    The current proponents of Senate Joint Resolution 40 appear 
anxious to distance themselves from these regimes and their 
draconian punishments. Major General Patrick Brady of the 
Citizens Flag Alliance, noting that 40 States have laws 
treating flag-burning as a misdemeanor, told the Subcommittee 
on the Constitution, Federalism, and Property Rights:

          To those who say we are trying to make felons of flag 
        burners, not true. If it were up to me, I would handle 
        it as a ticket. Send them to class and teach them how 
        vital respect is in a society as diverse as we are.

(Statement of Maj. Gen. Patrick Brady, March 25, 1998, page 7.) 
The notion that we should amend the Constitution of the United 
States and carve out an exception to the fundamental freedom of 
the First Amendment in order to issue a ticket and send someone 
to a class on ``respect'' takes one's breath away. As Bruce 
Fein observed about amending the Constitution, ``It is a matter 
of prudence and judgment and degree.'' (March 25, 1998 
Transcript, page 34.) To amend the Constitution in order to 
issue tickets and lectures is to abandon utterly all prudence, 
judgment and degree.
    The issue of punishment is a serious issue. It should be 
discussed openly and frankly by any body deliberating over an 
amendment to the Constitution. The deliberate evasion of this 
issue by proponents of Senate Joint Resolution 40 raises 
profound questions as to the rationale for this proposal.

d. existing legal and social sanctions are adequate to deter and punish 
                              flag burning

    In fact, the rare incident of flag burning generally can be 
punished under existing law, and with more than a fine and a 
compulsory class on respect. Indeed, these immature, repulsive 
acts usually are linked to other behavior that violates the law 
entirely separately from any message that the flag-burner is 
trying to send. Gregory Lee Johnson accepted stolen private 
property (a flag) and destroyed it by setting a fire in a busy 
public place.2 The State of Texas could have 
prosecuted Johnson for possession of stolen property, 
destruction of private property, and other crimes which the 
State routinely punishes without regard to speech.
    \2\ The Majority Report notes, at 60-61, that an ``unidentified 
patriot'' gathered up the remains of the burnt flag and buried it in 
his back yard. We are pleased to identify and give full credit to 
Korean War veteran Daniel Walker for this quietly gallant act. See 
Goldstein, ``Burning the Flag,'' 33 (1966).
    With the extreme rarity of actual incidents of flag-
burning, much was made in the hearings of a Wisconsin youth, 
Matthew Janssen, then 18, who stole a number of flags and 
defecated on one, and whose prosecution for flag-burning under 
an old, pre-Johnson statute, was overturned under the rule of 
Johnson. That does not mean, however, that Janssen went 
unpunished for his despicable act. In fact, he was prosecuted 
successfully for the message-neutral crimes he committed, and 
sentenced to nine months in jail and 350 hours of community 
service. Perhaps more important, he was ostracized, and had to 
go about his community with the shame of his act before him at 
all times. No fine, no class on respect, and no martyrdom at 
the hands of the central government could equal the punishment 
Janssen received. Senator Feingold raised the question with 
Wisconsin State Senator Roger Breske:

          Isn't this the ideal case to demonstrate that there 
        is no need to amend the First Amendment? This young man 
        was punished by the State and by his community through 
        harsh social sanctions, as well as criminal sanctions. 
        This punishment was so severe that the young man 
        publicly apologized and admitted that his actions were 
        abominable. If this is the case, what else can be 
        gained by amending the Bill of Rights?

(March 25, 1998 Transcript at 74.) Senator Breske responded, 
``He probably should have got a little more.''
    ``A little more'' is no reason to amend the Constitution of 
the United States.

III. Senate Joint Resolution 40 Is an Unprecedented Restriction on the 
                             Bill of Rights

  a. the first amendment, as the cornerstone of individual freedom in 
  this nation, protects above all that expression with which society 
                    disagrees or finds objectionable

    Ultimately, the debate over Senate Joint Resolution 40 and 
the earlier attempts to amend the Constitution to ban certain 
flag-burning turns on the scope we think proper to give to 
speech which deeply offends us. It turns on how free our speech 
should be.
    One opponent, Bruce Fein, made clear the basis of his 
opposition to any restriction on the freedom of speech.

          President Thomas Jefferson voiced the spirit of my 
        opposition to the amendment in his first inaugural 
        address when the nation was bitterly divided. That 
        giant among the Founding Fathers lectured on the 
        prudence of tolerating even the most extreme forms of 
        political dissent: ``If there be any among us who would 
        dissolve the Union or * * * change its republican form, 
        let them stand undisturbed as monuments of the safety 
        with which error of opinion may be tolerated where 
        reason is left to combat it.''

Mr. Fein also cited, as an example of the Enlightenment spirit 
of the Framers that undergirds the First Amendment, Voltaire's 
``Promethean'' statement, ``I disapprove of what you say, but I 
will defend to death your right to say it.''
    The Nation's faith in free speech is grounded ultimately in 
a confidence that the truth will prevail over falsehood, a 
faith that has sustained our thought since Milton wrote his 
``Areopagitica'' in 1644.

        [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 

    b. the american people can and do answer unpopular speech with 
                   tolerance, creativity and strength

    The lesson of Milton is practiced every day in America. 
Flag-burning is not the only form of expression that is utterly 
abhorrent to the large majority of Americans. The instinctive 
answer of the American people, however, is not trying to ban 
speech that we find offensive. That is the response of 
weakness. As Justice Louis Brandeis observed, ``those who won 
our independence eschewed silence coerced by law--the argument 
of force in its worst form.''
    The American people respond with strength. The Majority 
Report argues that requiring respect for the flag among 
everyone will or does unify us. It is clear, though, that the 
rare occasions of flag desecration have not subverted the unity 
the rest of us feel and cannot subvert our sense of unity. More 
fundamentally, respect cannot be coerced. It can only be given 
voluntarily. Some may find it more comfortable to silence 
dissenting voices, but coerced silence can only create 
disrespect and disunity. What unifies our country is the 
voluntary sharing of ideals and commitments. We can do our 
share toward that end not by enforcing conformity but by 
responding with responsible actions that will justify respect 
and allegiance, freely given. That is exactly how the American 
people respond.
    Senator Feingold pointed to the example of Appleton, 
Wisconsin, when each year 20,000 to 30,000 Americans join in 
the largest Flag Day parade in the Nation. Senator Durbin cited 
the example of the people of Springfield, Illinois, who faced 
the prospect of a Ku Klux Klan rally.

          For each minute that the Klan rally goes on, each of 
        us pledges a certain amount of money to be given to 
        B'nai B'rith and to the NAACP and other organizations. 
        So the longer they go on, the more money is being 
        [raised] in defense of the values of America. I think 
        that is what America is all about.

(Transcript of June 24, 1998 at page 23.) Recently, in Jasper, 
Texas, an African American was brutally tortured and murdered, 
apparently on account of his race. The Ku Klux Klan decided to 
hold a rally in Jasper because of the murder. Even in all of 
their pain over the incident, the good citizens of Jasper, led 
by their African American mayor, let the Klan speak. They let 
them march, and they even let them wave American flags. The 
good citizens of Jasper quietly spurned the Klan, and the Klan 
slithered out of town.
    Again, on July 18, 1998, in Couer D'Alene, Idaho, white 
supremacists obtained a permit for a ``100-Man flag parade'' 
and marched carrying American flags and Nazi banners side by 
side. As in Springfield the local residents turned ``Lemons 
into Lemonade,'' and raised $1,001 for each minute of the white 
supremacists' march, money for donations to human rights 
organizations. A few citizens loudly spoke back to the 
marchers, but most simply stayedaway. Steve Meyer, owner of The 
Bookseller made it a point to keep his store open, and observed that 
``Nazis were burning books in the 1930s, and I don't want them closing 
stores in the '90s.''
    The positive examples of the citizens of Wisconsin, 
Illinois, Texas, and Idaho show the America for which soldiers 
have fought and died. This is the strength and unity that no 
statute, no amendment can compel or embellish.
    A similar example of a powerful response to flag burning 
that protects the speech of everyone is cited, curiously, in 
the Majority Report. Curiously, because the act was committed 
prior to the Johnson and Eichman decisions when statutory 
sanctions were in full play, the act did not actually involve 
the burning of any flag, and the act ultimately appears to have 
been punished by ordinary, content-neutral laws which survive 
Johnson. The incident was the center of the testimony of Los 
Angeles Dodger General Manager Tommy Lasorda. In 1976, a father 
and son ran onto the field during a baseball game at Dodger 
Stadium and attempted to set fire to a flag. Contrary to the 
Majority Report's assertion, the attempt was unsuccessful and 
the flag was never burned, and the protestors appear to have 
been punished with stiff fines under the content neutral laws 
against running onto playing fields. Significantly, the crowd 
was in no way demoralized by the attempt, nor was their love 
for the flag or for our country diminished in the least. Far 
from it. As Mr. Lasorda accurately recounted:

          The fans immediately got on their feet * * * and 
        without any prompting that I can remember the whole 
        crowd stood and began to fill the stadium with an 
        impromptu rendition of ``God Bless America.''

(Testimony of Mr. Tommy Lasorda, July 8, 1998 at 40-41.) That 
was an answer on which Congress can never improve.
    It is by such positive and creative acts, that we best 
answer offensive speech. ``The proposed Amendment, in 
contrast,'' observed Bruce Fein, ``would be an act of negation, 
not an act of affirmation. It smacks too much of the petty 
tyranny of the discredited Alien and Sedition Act of 1798.'' 
(March 25, 1998 Statement of Bruce Fein at page 3.)
    It can be painful that the Klan and others try to associate 
themselves with the principles of our Nation by displaying the 
flag. It can be painful to see the crudeness and poverty of 
understanding of those who try to burn the flag. Stan Tiner 
spoke of

          The political factions and sects that fly the 
        American flag over their own various causes--the 
        communists to the Birchers, to David Koresh and his 
        followers--all seeking to imply that their particular 
        brand of Americanism is the one true and righteous 
          In a curious way, they are right. America is all of 
        these things, or at least a haven for freedom, where 
        all kinds of thinking can occur, and where free people 
        can speak their minds without fear of state police.

(Statement of Stan Tiner, March 25 1998 at page 3.) Therein 
lies part of the greatness of America. All voices, however 
hateful and obnoxious, can be heard, but it is the quiet 
nobility of the ordinary citizens of Appleton, Springfield, 
Jasper, and Couer D'Alene, and the spontaneous singing of ``God 
Bless America'' that wins the debate. The First Amendment 


    Senate Joint Resolution 40 unquestionably would restrict 
rights currently enjoyed by Americans under the First 
Amendment. Indeed, that is its sole purpose.
    The denial that Senate Joint Resolution 40 would restrict 
speech is strained. Indeed, even when proponents urge that they 
only seek to bar conduct and not speech, they cannot help 
pointing to the underlying role of speech in their effort to 
stop flag burning. In his March 25 statement, Professor 
Presser, could not describe the ``conduct'' of Gregory Lee 
Johnson without quoting the offensive words Johnson chanted as 
he burned the flag. It was, to Professor Presser as to all of 
us, the words that made the conduct especially offensive. 
Similarly, the Majority Report makes clear, at 61-2, that they 
would make it a crime to write some words on a flag but not 
others, depending on whether the message was currently popular. 
One proponent from academia, Professor Richard Parker, 
indicated that a flag-burning in a film would depend on the 
content of the film, or the message that the actors and 
producers intended to send. (Responses of Prof. Richard Parker 
to written questions.) Indeed, the Majority Report has a full 
section at pages 59-63, specifically attacking the notion, 
fundamental to the First Amendment and fundamental to a free 
people, that the government should maintain neutrality as to 
the content or message of political speech.
    Similarly, the proposed amendment differs radically from 
appropriate time, place and manner regulation of speech. Time, 
place and manner regulations are legislative techniques for 
promoting rather than suppressing speech. They are used to sort 
out on an equitable basis the competition for opportunities for 
speech. One may be required to get a permit to hold a parade 
lest competing parades collide with each other, or one may be 
required to post notices on bulletin boards in order to have an 
orderly, effective system of communication. If, as in Senate 
Joint Resolution 40 scheme, a regulation eliminates a 
particular channel of expression--if no one can parade or if 
the required bulletin boards are inaccessible--the regulation 
is an invalid limitation on speech.
    In discussing its rejection of a content-neutral approach, 
the Majority Report effectively concedes it cannot describe the 
acts of flag burning or desecration that should be punished 
without referring to the speaker's ideas as well as physical 
movements. Their own examples illustrate that non-verbal 
behavior often can and is intended to communicate, and their 
labored effort to distinguish flag-burning as ``conduct'' 
rather than ``speech'' is unsuccessful. Expression and conduct 
are inevitably intertwined, so that a would-be distinction 
between them is not workable. Occasions on which courts have 
talked in terms of this distinction can be reduced to something 
that is workable, namely, whether the behavior in question 
causes harm to real interests that the government can protect. 
For instance, the ``conduct'' element of burning a flag might 
be that which causes harm to the owner's property interest in 
that flag. It is precisely these harm-causing, ``conduct'' 
elements of flag desecration that can already be prohibited, 
and that routinely and effectively are in fact punished by the 
courts. The argument that desecration is ``conduct'' does not 
support the amendment at all. To the extent desecration is 
``conduct'' it can already be regulated; the Majority Report 
itself makes clear that the whole point of the amendment is to 
regulate ``expression'' and not ``conduct''.
    The fact that such expression is protected by the First 
Amendment is affirmed not only by the decisions of the Supreme 
Court in Johnson and Eichman, but by a long history of 
constitutional jurisprudence. Proponents of Senate Joint 
Resolution 40 have been unable to identify any Supreme Court 
precedent upholding a ban on disrespectful use of the flag 
against a First Amendment challenge because, quite simply, 
there is none. There quite simply is no decision of the Supreme 
Court in the entire history of the United States that upholds a 
criminal conviction for flag burning or other tampering with 
the flag against a First Amendment challenge.


    The strained efforts of the Majority Report to manufacture 
such a history underline just how wrong they are in their 
characterization of American legal history. The Report states, 
at page 3 and again at page 18, that the Supreme Court ``broke 
with over 200 years of precedent'' when it decided Johnson. The 
``precedents'' cited by the Majority Report in every case lack 
any relationship to First Amendment issues.3
    \3\ Professor Richard Parker, one apparent academic source of the 
claim of 200 years of jurisprudence, was specifically asked to identify 
the cases on which he relied for his claim. Prof. Parker identified no 
relevant cases at all before 1969, and only was able to cite dicta from 
four cases in which flag desecration convictions actually were 
overturned by the Supreme Court. Oddly, Prof. Parker does not even 
mention Stromberg v. California, 283 U.S. 359 (1931), West Virginia 
Board of Education v. Barnett, U.S. (1943), or even Minersville School 
District v. Gobitis, 310 U.S. 586 (1940). At most, the cases cited by 
Prof. Parker affirm the possibility that Congress could devise a 
content-neutral flag statute, including appropriately specific 
standards and terms, without any need to amend the Constitution.
    The Majority Report mentions Endecott's Case, a 1634 action 
of the Massachusetts Bay Colony in which ``a domestic defacer 
of the flag'' was prosecuted. In that case, John Endecott cut 
the cross of St. George from a English flag in apparent protest 
against the tyranny of Charles I and Bishop Laud. At the time, 
the Bay Colony offered no First Amendment rights.Freedom of 
speech was denied, as were freedom of assembly and freedom from the 
establishment of religion. Indeed, there were no written or even 
customary laws at this date: punishment was imposed by then-governor 
Winthrop and his allies in accordance with their view of morality and 
Scripture (``Thou shalt not suffer a witch to live.'') 4 The 
use of such a prosecution under such circumstances as evidence of ``the 
``historic core of consistency between flag protection and the First 
Amendment'' as claimed by the Majority Report at 9, indicates a 
conception of the First Amendment that can only be described as 
bizarre. It should be inconceivable that the actions of the British 
colonial government repressing American patriots should be the model 
and precedent for what the Senate should do now. Yet that, amazingly, 
is the logic of the proposed amendment.
    \4\ This regime presently banished Roger Williams (1635) for urging 
religious liberty, and Anne Hutchinson (1638) and Rev. Roger Wheelright 
(1637) over doctrinal differences. Endecott went on to serve a total of 
18 years as governor of the Bay Colony. Hawke, ``The Colonial 
Experience,'' 143-146, 689.
    Endecott's Case is, of course, properly seen as an example 
of the tyranny against which the Founders rightly rebelled, and 
Endecott's ``desecration'' as a very early step on the long 
movement toward independence from England. The case also is an 
early analog to a similar ``desecration'' of the English flag 
by George Washington to create the first flag of the 
Continental Army: On taking command of the army on July 3, 
1775, Washington took an English flag and, after removing both 
the cross of St. George and the cross of St. Andrew, sewed six 
white stripes onto the remaining red field. By this 
``desecration,'' George Washington created the 13 red and white 
stripes that remain to this day. Hart, ``The Story of the 
American Flag,'' 58 Am. L.Rev. 161, 167 (1924). We frankly are 
astonished that the Majority Report would cast aspersions on, 
in Patrick Henry's phrase, such gauntlets cast in the face of 
    The other examples cited by the Majority Report are less 
bizarre, but indicate a similar complete irrelevance to freedom 
of speech and the First Amendment. The Majority Report cites, 
at 10-11, a characterization by former Judge Robert Bork 
regarding Madison's opinion that the tearing down of the flag 
of the Spanish minister in Philadelphia in 1802 was actionable 
as part of its 200 years of history. The characterization is 
misleading. The incident refers, of course, to assaults on the 
property (a Spanish flag) within a foreign embassy, and the 
view that such assaults as entering uninvited into the 
ambassadorial residence, destruction of a painting, or 
destruction of a flag are equivalent to attacks on the foreign 
minister. There is no distinction between destroying a flag and 
destroying a painting or other property. 4 Moore, ``Digest of 
International Law,'' 627 (1906). The section cited deals with 
``Protection of Diplomatic Officers'' and has nothing to do 
either with peaceful protest, the flag of the United States or 
the decisions in Johnson and Eichman. Indeed, destruction of 
another's property, whether a flag or otherwise, remains a 
crime throughout the United States.
    The Majority Report, at 10-11, misses the point again when 
it cites Madison for the unremarkable proposition that for a 
foreign ship to menace a ship of the United States, fire upon a 
ship of the United States, and to force it to haul down the 
colors is a ``dire invasion of sovereignty,'' Majority report 
at 10-11, misses the point. The harm comes from firing upon a 
United States military vessel, and the treatment of the flag, 
to the extent that it can be isolated from the grievous 
physical coercion of American sailors involved in lowering it, 
simply added insult to a great injury. If the British had 
simply shot at United States servicemen, and left the flag 
alone, Madison would not have shrugged his shoulders and let 
the matter pass. Again, the example has nothing whatsoever to 
do with peaceful protest or the First Amendment. The United 
States can and does still strike back against those who attack 
Americans at home and abroad; Johnson and Eichman had no effect 
on that principle.
    Equally unrelated is the citation of a letter from 
Jefferson cited at page 12 of the Majority Report, dealing with 
the use of the United States flag by foreign ships to avoid 
English sanctions against trade with France during the 1790s. 
Jefferson was simply writing to our Consul at Canton, China to 
urge him to cooperate with other nations to detect such 
smugglers flying under false colors. Lipscomb, ed., 9 
``Writings of Thomas Jefferson'' 49-50 (1903). This is mere 
international cooperation. It has nothing to do with peaceful 
protest, with freedom of expression, or the First Amendment. 
The United States can and does still cooperate with other 
nations and limit the use of its flag; Johnson and Eichman had 
no effect on that principle.
    In its search for ``200 years of precedent,'' the Majority 
leaps from foreign policy over a century to cite the decision 
in Halter v. Nebraska, 205 U.S. 34 (1907), in which the Supreme 
Court upheld a state law banning images of the flag on bottles 
of Stars and Stripes beer. Again, the citation is far off 
target. The defendants did not raise a First Amendment claim in 
Halter, and the Court did not consider the First Amendment in 
any way. Until 1925, the Court did not apply the First 
Amendment to actions of the States, as opposed to the federal 
government. The decision had nothing to do with peaceful 
protest, with freedom of expression, or with the First 
    Again, there simply is no instance in the entire history of 
the United States in which the Supreme Court has upheld against 
a First Amendment challenge a conviction for flag tampering. On 
the contrary, the roots of the Johnson and Eichman decisions 
lie deep in American jurisprudence.


    The Supreme Court squarely held as early as 1931 that laws 
forbidding the display of certain flags (here, the red flag) 
violated the First Amendment. Stromberg v. California, 283 U.S. 
359 (1931). The Stromberg decision made clear, as have many 
other decisions, that the First Amendment protects expressive 
conduct (waving a flag) as well as written or spoken speech. 
Although the Court briefly allowed the expulsion from American 
classrooms of youngchildren who, as Jehovah's Witnesses, were 
forbidden by their Faith from pledging allegiance to the flag, 
Minersville School District v. Gobitis, U.S. (1940), the Court quickly 
reconsidered and removed the stain that Gobitis had placed on the First 
Amendment with its decision in West Virginia Board of Education v. 
Barnett, 319 U.S. 624 (1943).5 There, Justice Jackson wrote:

    \5\ The aftermath of the decision in Gobitis offers a sober warning 
to those who think government restrictions on unpopular speech 
strengthen the social fabric.

        The Gobitis decision, along with the American entry into 
      the war in December 1941, helped to foster a new wave of 
      expulsions of [Jehovah's] Witnesses' children [from public 
      schools] and a large and often extremely violent eruption 
      of harassment, beatings and arrests of adult Witnesses. The 
      American Civil Liberties Union (ACLU) reported that between 
      May and October 1940, almost fifteen hundred Witnesses 
      became the victims of mob violence in 355 communities in 
      forty-four states and that no religious organization had 
      suffered such persecution ``since the days of the 

    Goldstein, ``Burning the Flag,'' p. 9, Kent, Ohio, 1996.

          The case is made difficult not because the principles 
        of its decision are obscure but because the flag 
        involved is our own. Nevertheless, we apply the 
        limitations of the Constitution with no fear that 
        freedom to be intellectually and spiritually diverse or 
        even contrary will disintegrate the social organization 
        * * *.

Id., at 641-642. The Barnette decision, like that in Stromberg, 
assured protection for expressive conduct (remaining seated) as 
well as written or spoken speech.
    Following the decision in Barnette, the Supreme court 
consistently overturned convictions under flag desecration 
statutes in Street v. New York, 394 U.S. 576 (1969)(flag burned 
to protest shooting of James Meredith), Smith v. Goguen, 415 
U.S. 566 (1974) (flag patch on pants seat), and Spence v. 
Washington, 408 U.S. 404 (1974) (peace symbol taped to flag). 
Certainly, each of these convictions was overturned with 
appropriate distaste for the conduct at issue, and the 
decisions tend to be narrowly framed. Nonetheless, by the time 
Johnson was decided, the direction of the law was plain.
    The mainstream nature of the Johnson interpretation is 
underlined by the fact that, according to Professor Stephen 
Presser, a proponent of the amendment, a similar case would now 
command a 7-2 majority of the Supreme Court, and not just the 
5-4 majority of Johnson and Eichman.
    Senate Joint Resolution 40, moreover, would not overturn 
only Johnson and Eichman. If effectively implemented, it also 
would overturn Street v. New York, Smith v. Goguen and Spence 
v. Washington, each of which involved a physical act that could 
fall within a statutory definition of desecration. The 
Resolution thus would overturn decades of consistent 
interpretation of the first amendment, and certainly would cast 
a shadow over other flag-related decisions, such as West 
Virginia Board of Education v. Barnett. By excepting certain 
unpopular speech from first amendment protection, the 
Resolution would have severe implications for free speech 
jurisprudence in general.

                  f. freedom of speech is indivisible

    For Congress to limit expression because of its offensive 
content is to strike at the heart of the first amendment. As 
American Bar Association president Jerome Shestack advised the 
          Since its founding, this Nation has thrived on the 
        vigor of free speech and robust dissent not only 
        through the spoken or written word, but through 
        peaceful acts of political protest. The Boston Tea 
        Party, civil rights sit-ins, public demonstrations, and 
        in this instance, flag burning are all examples, some 
        laudable, some not, which have served to test the true 
        meaning of freedom of speech and expression and to 
        affirm that this hallowed principle is protected, not 
        prosecuted. The spirit of the first Amendment's 
        guarantee of freedom of speech is captured in Justice 
        Jackson's words in West Virginia State Board of 
        Education v. Barnette, a flag salute case:

          [F]reedom to differ is not limited to things that do 
        not matter much. That would be a mere shadow of 
        freedom. The text of its substance is the right to 
        differ as to things that touch the heart of the 
        existing order.

To restrict speech and political expression to only those areas 
that Congress approves is to limit, as China now does, the 
freedom of worship to only those churches of which that 
government approves. That is not freedom at all. As Charles 
Fried, Solicitor General under President Reagan, testified in 

          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.

Measures to Protect the American Flag, Hearing before the 
Senate Comm. on the Judiciary, 101st Cong., 2d Sess. (June 21, 
1990) (statement of Charles Fried at 113).

The Washington Post observed in a July 5, 1998 editorial,

          it would, in effect, turn the ``no'' in the hallowed 
        phrase ``Congress shall make no law'' into an ``almost 
        no''--which is a singular erosion of the principle for 
        which the First Amendment stands. This principle has 
        survived and enriched this country through periods in 
        which unfettered expression caused great political 
        stresses. Why should it be compromised now to prevent 
        Americans from burning flags that they weren't planning 
        to ignite in the first place?

The proponents of Senate Joint Resolution 40 have much to learn 
from the people of Appleton, Springfield, Jasper and Couer 

  g. existing constitutional limitations on freedom of expression are 
                applicable to instances of flag burning

    The decision of the Supreme Court in Johnson did not give 
carte blanche to protesters to burn flags whenever they please. 
The First Amendment principles under which Johnson was decided 
leave ample room for Congress and the States to regulate flag 
burning, just as they may reasonably limit other forms of 
expression on a content-neutral basis. For example, expression 
that is directed to inciting or producing ``imminent lawless 
action'' may be limited under Brandenburg v. Ohio, 395 U.S. 444 
(1969), and limits also can be placed on ``fighting words'', 
those likely to spark an average citizen to fight where there 
is an actual incitement to fight, and the statute is not simply 
an excuse to repress unpopular speech. Chaplinsky v. New 
Hampshire, 315 U.S. 568 (1942). The fact that these 
circumstances were not present in Johnson--it appears that 
those most likely to be incited by the conduct wisely had 
ignored the demonstration altogether, as did most other 
people--does not limit the authority of Congress and the States 
to respond to imminent violence. As the Supreme Court noted in 

          The state need not worry that our holding will 
        disable it from preserving the peace. We do not suggest 
        that the first Amendment forbids a State to prevent 
        ``imminent lawless action.''

491 U.S. at 410. States are free to prevent acts of violence. 
What a State cannot do is apply prior restraint on certain 
views by assuming that, because the speech is so offensive to 
some, that it will provoke ordinary citizens to violence.
    In response to a question from Senator Hatch as to the 
power of Congress to ban flag burning, as well as other fires, 
on the Mall in Washington, D.C., Reagan Justice Department 
official Bruce Fein explained:

          Of course, there are time, place and manner limits, 
        as your question insinuates, just as it is quite 
        permissible to punish someone who steals a flag and 
        burns it or otherwise destroys it. That is theft of 
        someone's property. And if someone dumps property in a 
        public place where it is prohibited, you are 
        prohibiting the dumping of the property, you are not 
        prohibiting [speech] * * * Time, place and manner 
        limits would apply to flag burning as it applies to any 
        other speech.

As explained above, the nature of this form of protest is such 
that it will contain discrete acts (such as theft) that can be 
punished under laws that in no way limit First Amendment 
    Established principles of First Amendment jurisprudence 
also provide room, albeit limited, for Congress to enact 
legislation protecting the flag, so long as that legislation is 
sufficiently specific to avoid the problem of vagueness and 
satisfy the Fifth Amendment due process clause, and so long as 
it is sufficiently content-neutral to satisfy the First 
Amendment. We do not suggest that this is an easy task. The 
same problems will plague legislative drafters if this 
amendment is adopted, however, and the American people would be 
far better served if the proponents of Senate Joint Resolution 
40 addressed this difficult task squarely and honestly at the 
outset by proposing a carefully crafted statute, rather than 
toying with the Constitution.

     IV. Senate Joint Resolution 40 Is Vague and its Effect on the 
            Constitutional Rights of Americans Is Uncertain


    Just as the proponents have avoided any discussion of an 
enforcement scheme for the proposed amendment, they have failed 
to offer a clear statement of just what conduct they propose to 
prohibit, or to advise the American people of the actions for 
which they may be imprisoned. Instead, they have asked that we 
trust to the wisdom of future Congresses. The American people 
deserve more from their Congress before they alter the 
Constitution of the United States.
    Far from offering any consensus, the proponents of this 
amendment have displayed a striking range of disagreement over 
what they intended to stop. Senator Feinstein attempted a clear 
and careful definition of a flag to include only the 
``official'' flag itself.

          I know people have made undergarments out of flags. 
        They have made neckties out of flags. But once that 
        pattern is in the form of a flag and able to hang as a 
        representation of out Nation, I really think it takes 
        on a whole different connotation * * *. [T]he flag is 
        so precise that if one were to change the colors, the 
        orientation of the stripes or the location of the field 
        of stars, it would actually no longer be an American 

(June 24, 1998 Transcript at 16-17.) The definition of Senator 
Feinstein thus would permit a wide range of activities that 
involved burning, or worse, of ``substitute'' flags, items with 
51 stars, with 12 or 14 stripes, or with a purple field, even 
under circumstances clearly intended to communicate the most 
bitter disrespect for this Nation and for its flag. Even this 
definition leaves essential questions unanswered, and the issue 
of what would make a flag ``official'' still would force 
Americans to act at their peril. Must the flag be of cloth? 
Must it be of a certain size, or would it include child's-size 
flags such as are used at many patriotic outings?
    The Majority report equivocates on this issue, passing the 
buck to ``the states and Congress.'' See pages 56-57. 
Meanwhile, the House Report on the companion to Senate Joint 
Resolution 40 is directly contrary to Senator Feinstein's 

        a ``flag'' could be anything 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 statute. 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 was burned in 
        order to circumvent the statutory prohibition.

H. Rep. 105-121. Expansive definitions of the flag have been 
used regularly in statutes that have prohibited flag-burning. 
The Wisconsin statute, for example, defined ``flag'' as

        anything which is or purports to be the Stars and 
        Stripes, the United States shield, the United States 
        coat of arms, * * * or a copy, picture, or 
        representation of any of them.

Wis. Stat. Section 946.05(2).
    The Uniform Flag Statute defines flag to include:

        any flag, standard, color, ensign or shield, or copy, 
        picture or representation thereof, made of any 
        substance or represented or produced thereon, and of 
        any size, evidently purporting to be such flag * * * of 
        the United States * * * or a copy, picture or 
        representation thereof.

    Under Senate Joint Resolution 40, Congress could prohibit 
``desecration'' of any of these; and, indeed, a protester 
certainly could offend the sensibilities of all of us by an act 
of desecration of any of these. The Majority Report expresses 
shock, shock at the idea that Congress might be less than wise 
in formulating any definition of the flag. The very fact of 
wide disagreement among the proponents of Senate Joint 
Resolution 40 shows the compelling need for a clear statement 
to the American people as to what conduct they intend to 
criminalize, if they can in fact create such a definition. The 
examples cited by the Majority Report, as discussed below, show 
that the Majority does indeed contemplate serious limitations 
on American freedom.


    Just as there is no clear definition of a flag, definition 
of ``desecration'' will invite a literally infinite catalogue 
of possible disputes. The Uniform Flag Statute, while 
separately banning ``mutilation'' of the flag, defined 
``desecration'' to include:
          (a) place or cause to placed any word, figure, mark 
        picture, design, drawing or advertisement of any nature 
        on any flag * * *; or
          (b) expose to view any such flag * * * upon which 
        shall have been printed, painted or otherwise produced, 
        or to which shall have been attached * * * any word, 
        figure, mark, picture, design, drawing or 
        advertisement; or
          (c) expose to public view for sale, * * * or to sell, 
        give or have in possession for sale * * * an article of 
        merchandise, upon which shall have been produced or 
        attached any such flag * * * In order to advertise, 
        call attention to, decorate, mark or distinguish such 
        article or substance.
    We presume that the Majority does not consider the Uniform 
Flag Act to be ``silly'' or an unreasonable guide. Each of its 
prohibited behaviors involves a physical act of desecration, 
and Congress likely could adopt such a Statute under the 
proposed constitutional amendment. The scope of such a ban 
would affect significantly not only speech, but also American 
commerce and life. The cover of the Washington Post ``Home'' 
section of July 2, 1998, included a photograph of picnic 
equipment with a flag motif: disposable ``flags,'' within the 
meaning of most statutes, and certain, indeed designed, to be 
soiled with food and thrown into the trash--in other words to 
be desecrated. Are we to amend the Constitution to prohibit 
such picnic trivia? Are we to amend the Constitution and punish 
people who soil, crumple and burn pictures of the flag? If a 
protestor, chanting the words that Gregory Lee Johnson spoke, 
``Red white and blue, we spit on you,'' burned not a flag but 
an image of a flag, would anyone fail to be offended?
    John Schneider, who testified in favor of Senate Joint 
Resolution 40, observed that if someone did ``purposeful'' harm 
to a flag lapel pin, ``they have desecrated the flag and that 
[should be] a punishable offense just as if they had harmed any 
other United States flag intentionally.'' (Response of Mr. John 
Schneider to written questions.)
    Mr. Schneider captured the difficulty of defining the 
essential terms of the proposed amendment when, having included 
lapel pins in his definition of a flag, he recommended against 
allowing representations of the flag on tissues or underwear, 
but would allow shirts or jackets representing the flag. 
``These are just clothing and not really the `Flag.' I'm not 
certain why this is true but it falls under the category of 
being right because it is.'' (Emphasis in original) (Response 
to written questions.) Another proponent of the amendment, 
Professor Richard Parker, on the other hand, considers this 
view to be ``wacky,'' and would not prohibit even the display 
of a photograph of the flag indelicately touching a nude male, 
which has been prosecuted in this country. (Responses of Prof. 
Richard Parker to written questions.)
    Stan Tiner observed that the worst offenders against the 
flag are committed by the ``well-intentioned, or perhaps simply 
thoughtless person[s]'' who, for example, place hundreds of 
small flags around a city to honor America and then leave them 
to the wind and weather.
    The fact is that the proposed amendment is not in the least 
limited to flag burning. It prohibits desecration, and the core 
idea of desecration will persist in any implementing statute: 
the diversion of a sacred object to a secular use. People wrap 
flags around themselves or around manikins and the like in 
political marches. It is a step from there to wearing a flag 
like a shawl. People pin flags up in storefront displays. 
People use flags in what they consider to beartistic 
presentations, make paintings of flags and use flag images. A venerable 
African American quilt maker uses bits of flags in her work. Flags are 
used in movies and plays in all kinds of dramatic ways. Any of these 
uses may have political or cultural overtones that offend someone. All 
of them are nonconforming, nonceremonial uses of flags. It is 
inevitable that a great range of expressive behavior will be inhibited, 
silenced, or punished under the implementation of the amendment. All of 
this will be expression that was hitherto protected, and much of it 
will be behavior that most people consider innocent or acceptable. In 
short, the amendment will create havoc for free expression for the 
purpose of solving no real problem.
    The spiraling complexity and escalating censorship the 
amendment will create is all too clearly illustrated in the 
ways one of its key proponents believes it will have to be 
implemented. Mr. Schneider envisions a major educational 
campaign, including classes for Americans (we hope voluntary) 
as a result of this Amendment:

          Clearly, with regard to protocol, it will be 
        necessary to educate a new generation on how the flag 
        is to be taken care of in times of war and peace. It 
        will be necessary to educate a new generation on the 
        ceremony required to raise, lower, respect and retire 
        the flag as well.''

    This may be well-intentioned, but it illustrates how the 
proposed amendment is likely to spiral off into very 
troublesome directions. Mr. Schneider also envisions a system 
of permits, apparently to determine any circumstances under 
which a flag might permissibly be burned, as in a motion 
picture dramatizing historical events. ``If Congress decides 
that the burning of a flag is necessary in order to make a film 
in which this act is depicted as a heinous act, then they 
should have the right to approve of the event.'' Such permits 
thus would depend on the message and content of the film. The 
burgeoning scope of the amendment perceived by its supporters 
is underlined in the Majority Report, at 57: ``The Committee 
believes, moreover, that states and Congress will legislate 
with care,'' (emphasis supplied) and looks to improvements in 
``most of the 49 pre-1989 statutes.'' See also page 58, ``The 
flag protection amendment is limited to allowing the states and 
the federal government * * *.'' (Emphasis supplied.) While the 
text of the proposed amendment gives power to ``Congress,'' the 
Majority lets slip that there also will be a legislative role 
for the States. The Majority Report should state clearly the 
intended scope of their amendment.
    The most powerful example of the vagueness and mischief of 
this amendment came from Senator Durbin, who noted that many 
people would consider it desecration to sit on a flag. Each of 
us certainly can imagine circumstances in which such conduct 
would be an outrage, and, indeed, the Majority Report, at 61, 
stresses that affixing a flag to the seat of one's pants should 
be prosecuted. Senator Durbin then pointed out that in one of 
our greatest and most moving monuments to freedom, the Lincoln 
Memorial, Abraham Lincoln sits--on the American flag.


    The Majority Report argues, unconvincingly, that no 
statutory alternative is available to address the issue of flag 
burning. In fact, the same problems that complicate the 
drafting of such a statute, and specifically of affording 
Americans the specificity demanded by the Due Process Clause of 
the Fifth Amendment, also attend the proposed amendment.
    The Majority Report notes that the Due Process Clause 
requires that criminal statutes be sufficiently specific that 
citizens can be on notice to match their behavior to the law. 
The Due Process Clause forbids situations such as that in the 
Majority's Endecott's Case, where the law was whatever the 
magistrate determined it to be. The Majority Report notes, at 
49, that in Smith v. Goguen the phrase ``treats 
contemptuously'' in a Massachusetts statute was held to be 
unconstitutionally vague where it was not linked to specific 
acts (mutilating, defacing, etc.). The Majority are clear, 
however, that they propose to ``empower Congress to prohibit 
the contemptuous or disrespectful physical treatment of the 
flag,'' Majority Report at 61, with no specific boundaries as 
to such treatment. Indeed, they seek to criminalize the 
specific conduct the Supreme Court protected in Smith v. 
Goguen. See Majority Report at 61. The Majority report thus 
clearly points to a statute which is unconstitutionally vague 
in violation of the Due Process Clause of the Fifth Amendment, 
and which likely would be overturned, just as were the statutes 
in Johnson and Eichman.
    The Majority Report would prohibit some but not all writing 
on the flag: It would be criminal to write words critical of 
the government on a flag, but not to write the name of a 
military unit. One can only guess whether it would constitute 
desecration to write on a flag, as part of a political 
statement, the names of the rare military units which were 
engaged in despicable acts either on behalf of the government 
(e.g., General DeWitt's Western Defense Command and Fourth 
Army, which enforced the internment of Japanese-Americans) or 
at their own initiative (e.g., My Lai and Wounded Knee.) It is 
not clear whether veterans could be punished for reverentially 
burning flags with the names of their units to protest the 
broken promises of Congress to provide them with health and 
other care, but instead spend those funds on pork barrel 
highway projects. One can imagine that in many cases it would 
be ``legal'' to affix a picture of George Washington to a flag, 
but illegal to affix a picture of Richard Nixon, or other 
recent presidents. The Majority insists that it would be 
illegal to affix a flag to the seat of one's pants, but it is 
not at all clear why. Does the criminality lie in the physical 
desecration by sewing, which in many cases would capture highly 
pro-government or patriotic citizens, as in the case of flags 
sewn on many police officers' sleeves? Or does the criminality 
lie in the proximity of the flag to the rear end, as in the 
statue of Lincoln in the Memorial the Nation has built to him?
    None of these situations or ten thousand other situations 
is clear although, under the Fifth Amendment, each case must be 
clear. Citizens must know in advance what specific conduct will 
be punished by the state. There is no freedom for a people who 
can, as in the Majority-cited Endecott's Case, lose their 
liberty because their political beliefs offend a court's 
sensibilities, where one's guilt depends not on whether one 
burned a flag ``but on the mannerin which he burned it.'' 
Majority Report at 60. Professor Parker, an academic proponent of the 
amendment, quotes Justice Felix Frankfurter, horribly out of context, 
that constitutional law ``gather[s] meaning from experience.'' 
(Response of Prof. Richard Parker to written questions.) For a criminal 
provision to gather meaning from experience is to make law ex post 
facto, to apply the rule of Endecott's Case. This is intolerable in a 
free society. What the Majority Report seeks is some sort of statute 
that quite clearly violates the Due Process Clause of the Fifth 
Amendment. They cannot have such a statute unless Senate Joint 
Resolution 40 is to ride roughshod over not only the First Amendment, 
but the Fifth Amendment as well. The difficulty in drafting a statue 
that does not conflict with the Bill of Rights will remain even if the 
amendment is adopted.
    A statute enforcing this amendment either would be found 
unconstitutional for vagueness, or else capture as criminals 
hundreds of well-meaning American citizens and businesses whose 
patriotism is beyond question. The Majority Report indirectly 
acknowledges as much in blithely claiming that its language is 
just as clear as ``such terms as `unreasonable searches and 
seizures;' `probable cause;' `speedy * * * trial;' `excessive 
bail;' `excessive fines;' `cruel and unusual punishment;' `due 
process of law;' and `just compensation* * *.' '' Of course, 
these terms have required and continue to require literally 
thousands and thousands of cases for their interpretation. We 
tolerate, and even embrace their generality because in each and 
every case the terms protect our liberty and limit the ability 
of government to search, seize, hold and punish American 
citizens: The question always is whether they extend additional 
protection to us. An open-ended criminal statute is another 
matter entirely. The question then would be whether we dare to 
speak in pursuance of our rights. Vagueness is absolutely 
intolerable where it frightens people into silence and empowers 
government to search, seize, hold and punish American citizens.
    The impulse to punish ideas which permeates the Majority 
Report leads only to endless entanglement. Even with the large 
increase in the number of flag burnings that can be expected if 
this amendment is adopted, and even without the inventiveness 
in mistreatment of the flag that can be predicted, there will 
be no end to the litigation under any statute. The amendment 
would demean rather than protect the flag.
    As Senator Leahy observed,

          Do we really want to open a constitutional can of 
        worms, and invite a parade of hairsplitting court cases 
        over whether burning a picture of the flag or putting 
        the flag on the uniforms of our Olympic team or 
        stepping on a lapel pin amounts to desecration? The 
        biggest threat to the dignity of the flag may be our 
        efforts to protect it.

                             V. Conclusion

    There is no need to amend the Constitution. The flag has a 
secure place in our hearts. The occasional insult to the flag 
does nothing to diminish our respect for it; rather, it only 
reminds of our love for the flag, for our country, and our 
freedom to speak, think and worship as we please. The laws 
against everyday hooliganism allow ample scope for States to 
jail those who need to be jailed regardless of their message or 
cause, but the punishment meted out by the law is nothing 
compared to the condemnation and ostracization by their fellow 
citizens that flag burners face.
    Even more precious than the flag, however, are the freedoms 
that it represents. Our soldiers fought not for a flag but for 
freedom, freedom for Americans and for others across the globe. 
It would be the cruelest irony if, in a misguided effort to 
honor the symbol of that freedom, we were to undermine the most 
precious of our freedoms, the freedoms of the First Amendment. 
Senate Joint Resolution 40 would do just that.
    This amendment is a wrong-headed response to a crisis that 
does not exist. It would be an unprecedented limitation on the 
freedom Americans enjoy under the First Amendment, and would do 
nothing to bolster respect for the flag. Respect for the flag 
flows from the freedoms we enjoy and from the sacrifices of 
those who have protected and spread that freedom. Freedom is 
what we should cherish. Freedom is what we should protect.
    We respectfully urge that Senate Joint Resolution 40 not be 
approved by the Senate.
                                   Patrick Leahy.
                                   Ted Kennedy.
                                   Herb Kohl.
                                   Russ Feingold.
                                   Dick Durbin.
                                   Robert Torricelli.


                    I. The Flag Deserves Protection

    Nothing symbolizes what we might call our ``national 
spirit'' like the flag. In times of crisis, it inspires us to 
do more. In times of tranquility, it moves us to do better. At 
all times, it unifies us in the face of our diversity and our 
    After the Supreme Court handed down its decision in Texas 
v. Johnson, 491 U.S. 397 (1989), invalidating the conviction of 
flag burner Gregory Johnson, I joined the overwhelming majority 
of my colleagues in a call to action. Notwithstanding my 
instinctive first amendment passions, I felt then--as I do 
now--that the flag is special and uniquely deserving of legal 
protection. I believe that we should protect the flag as the 
singular and unifying symbol of a diverse people in need--in 
urgent need, sometimes--of common ground. Like many Americans, 
I can see in my mind's eye the picture painted by American 
Legion National Commander William Detweiler:

          We are a nation born of immigrants, many of whom came 
        to America with only scant knowledge of our heritage 
        and our history. Whether they docked at Ellis Island 
        eighty years ago or landed in Miami yesterday, one of 
        the first sights they beheld was Old Glory waving 
        proudly in the air. It was the embodiment of all of 
        their hopes for a better tomorrow. Although it was not 
        the flag of their fathers, they knew it would be the 
        flag of their children, and of their children's 

(Written statement of William Detweiler, June 6, 1995 at 5.)

    The flag, as Justice Stevens wrote in his Texas v. Johnson 
dissent, symbolizes more than nationhood and national unity.

          It also signifies the ideas that characterize the 
        society that has chosen [it] as well as the special 
        history that has animated the growth and power of those 
        ideas. * * * [The flag] is a symbol of freedom, of 
        equal opportunity, of religious tolerance, and of good 
        will for other peoples who share our aspirations.

491 U.S. at 396-97 (Stevens, J., dissenting).

    All of the views expressed in this report--majority and 
minority--evidence respect and love for the flag. But this 
shared sentiment does not end the debate over a constitutional 
amendment; it marks only where it begins. For this is not a 
debate between those who love the flag and those who don't, or 
between patriots and rogues. It's a debate about the proper 
balance to be struck between our respect for the flag and our 
commitment to the Constitution's bedrock values.
    In seeking to protect the flag, we must not trample on the 
very rights that give meaning to the concept of freedom 
Americans treasure. As we contemplate adding a 28th amendment 
to the Constitution, we must not lose sight of the first 
amendment and its guiding principles. I believe that we can 
protect the flag while not doing damage to core free speech 
values--by prohibiting all abuse of the flag without regard to 
the message intended by the abuser.
    Unfortunately, S.J. Res. 40 does not take this approach. 
Instead, as outlined in detail below, the amendment seeks to 
protect the flag by impinging on first amendment rights in a 
way never before permitted in our Nation. Thus, I cannot 
support this constitutional amendment--even as I add my voice 
to the many voices on the pages of the majority report--all of 
us trying to put to words the shiver we get when we see the 
flag--our flag--flying high and proud.
    I believe that there is a way to protect the flag and not 
do violence to the core first amendment value of viewpoint 
neutrality--by prohibiting all abuse of the flag without regard 
to the message intended by the abuser.

     II. Any Effort To Protect the Flag Should Be Viewpoint Neutral

    At the heart of the First Amendment lies a very basic 
notion: the government cannot muzzle a speaker because it 
dislikes what he has to say, or discriminate between your 
speech and mine because it agrees with me but not with you. 
That sortof viewpoint discrimination is most importantly what 
the first amendment forbids. As the Supreme Court has said:

          [A]bove all else, the First Amendment means that 
        government has no power to restrict expression because 
        of its message, its ideas, its subject matter, or its 
        content. * * * The essence of * * * forbidden 
        censorship is content control. Police Dept. of Chicago 
        v. Mosley, 408 U.S. 92, 95-96 (1972); see also FCC v. 
        Pacifica Foundation, 438 U.S. 726, 745 (1978) (``[I]t 
        is a central tenet of the First Amendment that the 
        government must remain neutral in the marketplace of 

    The Supreme Court forcefully reiterated its intolerance for 
viewpoint discrimination in Rosenberger v. University of 
Virginia, 515 U.S. 819 (1995):

          In the realm of private speech or expression, 
        government regulation may not favor one speaker over 
        another. * * * When the government targets not subject 
        matter but particular views taken by speakers on a 
        subject, the violation of the First Amendment is all 
        the more blatant.

    It was in this spirit--to protect the flag while not doing 
violence to the core first amendment principle of viewpoint 
neutrality--that I wrote The Flag Protection Act in 1989. The 
Act aimed to safeguard the physical integrity of the flag 
across the board--by making it a Federal crime (without regard 
to the actor's motive) to mutilate, deface, physically defile, 
burn, maintain on the floor or ground or trample on an American 
flag. An exception was carved out for disposing of the flag 
when it became worn or soiled.\1\ The statute focused solely 
and exclusively on the conduct of the actor--regardless of any 
idea she might have been trying to convey, regardless of 
whether she meant to cast contempt on the flag, and regardless 
of whether anyone was offended by her actions.
    \1\ The majority report would have us believe that viewpoint 
neutrality is sacrificed by a law which excepts disposal of a worn or 
soiled flag. Not so. The governmental interest at stake here is in the 
flag as we all know it--intact and worthy of display. When a flag has 
come to the end of its life, our interest is no longer in its 
preservation--and so allowing for its customary disposal in no way 
detracts from the viewpoint neutrality that we should impose upon its 
destruction during its life. At the end of its days, a flag is no 
longer the flag that we aim to protect.
    The statute was written that way because, in my view, the 
government's interest in preserving the flag is the same 
regardless of the particular idea that may have motivated any 
given act of burning or mutilation. Our interest in the flag is 
in the flag itself--as the symbol of our identity as Americans. 
The flag's unique place in our national life means that we 
should preserve it against all manner of destruction. It 
matters not whether the flag burner means to protest a war, 
praise a war--or start a barbecue. It is the flag as treasured 
symbol--not as vehicle for disagreeable speech--that should be 
    As Professor Tribe testified in support of the Act:

          ``The sentiment reflected in a law designed to 
        protect a physical symbol may often be a sentiment of 
        sympathy for what the symbol embodies and represents, 
        not a sentiment of censorship of what the symbol-
        destroyer expresses.''

        (Written statement of Laurence H. Tribe, August 1, 1989 
        at 5.)

    Regrettably, in my view, the Supreme Court, by a 5-to-4 
vote, struck down The Flag Protection Act in U.S. v. Eichmann, 
496 U.S. 310 (1990), which brings us to where we are today: 
face to face with the prospect of adding a 28th amendment to 
the Constitution. And though I here part company with many of 
my liberal friends--believing as I do that the flag is worthy 
of constitutional protection--I nevertheless must oppose S.J. 
Res. 40. I oppose this constitutional amendment because, in my 
view, it puts the flag on a collision course with the Bill of 

               III. S.J. Res. 31 Is Fundamentally Flawed

               a. the amendment is not viewpoint neutral

    The proposed amendment gives Congress the power to prohibit 
the physical ``desecration'' of the flag. Contrary to the 
suggestion of the majority, it is not the ambiguity of the 
word, but its generally accepted meaning, that I find so 
troublesome. Although the amendment itself does not hazard a 
definition, the majority report does: desecrate means to treat 
with contempt, to treat with disrespect, to treat with 
profanity, or to violate the sanctity of something. Report at 
57. See also Webster's New Collegiate Dictionary (``to violate 
the sanctity of: PROFANE; to treat irreverently or 
contemptuously''); Black's Law Dictionary (``to violate 
sanctity of, to profane, or to put to unworthy use'').
    That word--desecration--is so value laden that it gives the 
Government license to do what the first amendment most 
fundamentally prohibits: to discriminate between speech it 
likes and speech it doesn't like. For to determine whether an 
action ``desecrates,'' we must first make a value judgment 
about what message the actor is trying to communicate. Does he 
mean to profane the flag? Does her action treat the flag 
irreverently or contemptuously? Is the flag being put to an 
unworthy use? When we make those kinds of value judgments, we 
are not making the act of flag burning the crime--we are making 
the message behind the act the crime.
    That is the crux of my objection to this amendment--it 
makes not the act, but its message, the crime. And in so doing, 
it gives the Congress and the States nearly unbounded authority 
to criminalize expressive conduct that the Government may find 
offensive, annoying or just plain wrong-headed. As Prof. 
Michael E. Parrish noted:

          The proposed [amendment] flies squarely in the face 
        of the libertarian-egalitarian tradition of 
        constitutional amendments in this country. It does not 
        secure or enhance individual freedom; it seeks to 
        restrict it. It does not limit governmental authority; 
        on the contrary, it unleashes it. It does not promote 
        equality or justice; it invites Congress and the state 
        legislatures to punish those forms of expression and 
        conduct which offend the sentiments of the majority. 
        This, the First Amendment forbids.

(Written statement of Prof. Michael E. Parrish, August 14, 1989 
at 5.)

    Professor Cass R. Sunstein put it simply: one of the 
problems with the word ``desecration'' is that it 
``conspicuously calls for criminalization of protest activity--
of criticism of the government--rather than protecting the flag 
in a more neutral manner.'' (Written statement of Prof. Cass R. 
Sunstein, June 6, 1995 at 6.)
    In a rather striking passage, the majority report seems to 
suggest that the amendment would require viewpoint neutrality 
in both its implementation and enforcement. See Report at 52 
(suggesting that amendment will be governed by R.A.V. v. City 
of St. Paul, 112 S.Ct. 2538 (1992), which (as report concedes) 
``requires that the government not discriminate among flag 
desecrators based on the points of view they seek to dramatize 
by their particular physical desecration''); id. at 53.
    The majority's suggestion is belied, however, not only by 
the amendments considerable legislative history, but by the 
majority report itself. Indeed, the chief proponents of the 
proposed amendment have been unapologetic on the point--arguing 
that neutrality is neither desirable nor sufficient, and 
pointing to the amendments lack of neutrality as one of its 
most appealing features.
    For example, when the Judiciary Committee held an extensive 
set of 4-day hearings on the amendment in 1989, Assistant 
Attorney General William Barr testified that the measure 
``would permit the legislatures to focus on the kind of conduct 
that is really offensive.'' (Testimony of William P. Barr, 
August 1, 1989 at 128) (emphasis added). Mr. Barr testified 
that the amendment would give the Congress and states ``wide 
latitude to prohibit that conduct toward the flag that they 
believe deserved proscription'' (written statement of William 
P. Barr, August 1, 1989 at 13); that there are ``an infinite 
number of forms of desecration'' (id. at 17); and that States 
would have ``substantial discretion'' in fashioning flag laws 
(id. at 20).
    When the Committee once again convened hearings in 1990, 
after the Eichmann decision, the Bush administration was no 
less candid. At those hearings, Acting Assistant Attorney 
General Michael Luttig testified that the amendment would give 
the Government the latitude to punish actions ``only as 
intended to cast contempt upon the flag.'' (Testimony of 
Michael Luttig, June 21, 1990 at 25.) Indeed, I specifically 
asked Mr. Luttig whether it would be permissible under the 
amendment to pass laws discriminating between different types 
of expression. His response was nothing if not frank: ``That is 
correct,'' he said. ``You could punish that desecration which 
you thought was intended to be disrespectful toward the flag 
and not that [which] in your judgment does not.'' Id.
    The majority report also underscores the point: viewpoint 
neutrality is neither a goal nor an attribute of the proposed 

          The Committee does wish to empower Congress and the 
        States to prohibit the contemptuous or disrespectful 
        physical treatment of the flag. The Committee does not 
        wish to compel Congress and the States to penalize 
        respectful treatment of the flag.

(Report at 39) (emphasis in original).

    Former Assistant Attorney General Charles J. Cooper 
testified similarly:

          I submit that public sentiment is not ``neutral''; it 
        is not indifferent to the circumstances surrounding 
        conduct relating to the flag. If such conduct is 
        dignified and respectful, I daresay that the American 
        people and their elected representatives do not want to 
        prohibit it; if such conduct is disrespectful and 
        contemptuous of the flag, I believe that they do.

(Testimony of Charles J. Cooper, June 6, 1995).

    I do not challenge for a moment the factual accuracy of Mr. 
Coopers testimony: all of us, instinctively, are probably more 
inclined to punish acts of flag desecration that we consider 
disrespectful than those we consider dignified. But that, I 
believe, misses the basic constitutional point--indeed, the 
genius of the first amendment. Here in America, the majority 
byand large does not get to choose what can and cannot be said by the 
minority--or by anyone else, for that matter. And the Government, more 
importantly, is constitutionally restrained from deciding what speech 
is ``good'' and what ``bad.'' 2 But that is precisely what 
the proponents of the amendment say that it would--should--do. They 
would have a flag emblazoned with the slogan ``government is great'' 
treated differently than one that says ``government is rotten.'' See 
Report at 65 (arguing that a properly drafted amendment would treat 
placing the words ``Down with the fascist Federal Government'' on a 
flag differently from placing the name of a military unit on a flag). 
That, I believe, takes us down an unchartered and very perilous path.
    \2\ The majority rightly points out that the First Amendment's free 
speech guarantee is not absolute: obscenity, fighting words, libel, 
words that incite imminent lawlessness, and commercial speech are all 
circumscribed to varying degrees. But the point is this: those are 
entire categories of speech that the Court has accorded less than full 
protection--either because they are harmful in and of themselves, 
lacking entirely in scientific, literary, political or artistic value, 
or false. At no time has the Court given the green light to viewpoint 
discrimination within a given category--and said, for instance, that 
pro-American fighting words are permissible where their anti-American 
counterparts are not, or that it's OK to libel Republicans but not 
    As Professor Tribe stated:

          The proponents of [the] amendment work themselves 
        into a posture where they are advocating what * * * not 
        any of the conservative Justices of the Court have ever 
        said we ought to be able to do: censoring the viewpoint 
        being expressed through a particular act.

(Testimony of Laurence H. Tribe, August 1, 1989 at 160.)

    Under this amendment, the State could send to jail the 
fringe artist displaying the flag on the floor of an art 
museum--while giving its blessing to the veteran who displays 
the flag on the ground at a war memorial. The State could 
arrest the widow who burns the flag to protest the war that 
took her husband's life--while smiling on the widow who burns 
the flag in loving memory of her fallen loved one. And the 
State could prosecute the black veteran who neatly sews a 
black, green, and red flag on one side of the flag to 
demonstrate unity and pride in his African-American heritage--
while allowing another veteran to sew together the Delaware 
State flag and the American flag.
    I respectfully submit that the proposed amendment, which 
endorses--and indeed encourages--this type of viewpoint 
discrimination exacts too high a constitutional price for the 
protection of the flag. Again, Professor Tribe:

          [O]ne of the most profound principles for which our 
        flag stands--a principle at the core of the First 
        Amendment--is that government must never prohibit 
        verbal or symbolic expression simply because society 
        detests the particular idea or emotion expressed * * *

(Written statement of Laurence H. Tribe, August 1, 1989 at 2.)

    Or as Justice Jackson so memorably put it in the flag 
salute case of 1943:

          The very purpose of a Bill of Rights was to withdraw 
        certain subjects from the vicissitudes of political 
        controversy, to place them beyond the reach of 
        majorities and officials and to establish them as legal 
        principles to be applied by the courts. * * * If there 
        is any fixed star in our constitutional constellation, 
        it is that no official, high or petty, can prescribe 
        what shall be orthodox in politics, nationalism, 
        religion or other matters of opinion or force citizens 
        to confess by word or act their faith therein. If there 
        are any circumstances which permit an exception, they 
        do not now occur to us.

Board of Education v. Barnette, 319 U.S. 624, 638, 642 (1943).

    Justice Holmes said it this way:

          [I]f there is any principle of the Constitution that 
        more imperatively calls for attachment than any other 
        it is the principle of free thought--not free thought 
        for those who agree with us but freedom for the thought 
        that we hate.

U.S. v. Schwimmer, 279 U.S. 644, 654-5 (1929) (Holmes, J., 

    What it boils down to is this: the amendment allows the 
Government to pick and choose--to make flag burning illegal 
only in certain situations, involving only certain 
circumstances, and only if carried out by certain people. This 
discrimination is precisely--and most profoundly--what the 
first amendment forbids. Any amendment that works such 
discrimination does not protect the flag. It censors 
    \3\ The majority report contends that the amendment will simply 
restore to the States the power they had before the Supreme Court 
handed down Texas v. Johnson in 1989--and that the states will exercise 
their power appropriately. Both as a matter of law and perception, 
however, the States will have much more latitude under the amendment. 
Prior to Johnson, the States acted within what they believed were the 
first amendment's boundaries. With this new amendment in hand, the 
States would not be thus constrained.

                            III. Conclusion

    I agree that we should honor the flag. We should hold it 
high in our hearts and in our laws. I believe that we should 
have a single, national standard which protects the flag 
against all manner of destruction and mutilation.
    But we should not, in our effort to honor the flag, 
dishonor the Constitution in the process. And that, I believe, 
is what this amendment asks us to do. By giving the States the 
power to criminalize the physical ``desecration'' of the flag, 
it gives them each a license to discriminate between speech 
they like and speech they don't. For desecration--like beauty--
is in the eyes of the beholder.
    ``A regulation of speech that is motivated by nothing more 
than a desire to curtail expression of a particular point of 
view,'' wrote the Supreme Court, ``is the purest example'' of a 
law abridging the freedom of speech. Consolidated Edison C. v. 
Public Serv. Comm'n, 447 U.S. 530, 546 (1980). S.J. Res. 31 is 
a textbook example of the sort of provision the Court warned 
against. We should heed the warning and reject the amendment.
                                                         Joe Biden.

                       X. CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee finds no changes in 
existing law caused by passage of Senate Joint Resolution 40.