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                                                        Calendar No. 98
106th Congress                                                   Report
 2d Session                                                     106-246




                 March 20, 2000.--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. 14]

    The Committee on the Judiciary, to which was referred the 
joint resolution (S.J. Res. 14) to propose an amendment to the 
Constitution so that ``Congress shall have power 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 pass.



  I. Summary..........................................................2
 II. Legislative History..............................................3
III. Discussion.......................................................6
          A. A brief history of the American flag................     6
              1. Early Colonial and Revolutionary flags..........     6
              2. The Betsy Ross story............................     7
              3. Origins of the nickname ``Old Glory''...........     8
          B. The importance of the flag to the American people...     8
          C. A brief legal history of flag protection............    15
              1. Flag protection in the colonial era.............    15
              2. Founding Fathers equated the American flag with 
                  the sovereignty of the Nation..................    16
                a. James Madison.................................    17
                b. Thomas Jefferson..............................    18
              3. Statutory protection of the flag................    19
                a. Promotion of respect for the flag.............    19
                b. Protection of the flag: striking the balance..    19
                c. Judicial application of flag protection 
                    Statutes: respecting the balance.............    21
          D. Judicial amendment of the Constitution: restriking 
              the balance........................................    22
          E. Senate Joint Resolution 14 is the appropriate 
              constitutional remedy..............................    26
              1. Senate Joint Resolution 14 would restore the 
                  traditional balance to the court's first 
                  amendment jurisprudence........................    26
              2. Congress has a compelling interest in protecting 
                  the flag.......................................    27
                a. Preserving the values embodied by the flag....    27
                b. Enhancing national unity......................    27
                c. Protecting an incident of our national 
                    sovereignty..................................    28
              3. The terms ``physical desecration'' and ``flag of 
                  the United States'' are sufficiently precise 
                  for inclusion in the Constitution..............    28
              4. Parade of horribles is an illusion..............    30
              5. The American flag should be protected in order 
                  to remove the Government sanction of flag 
                  desecration....................................    33
 IV. Vote of the Committee...........................................34
  V. Text of S.J. Res. 14............................................34
 VI. Cost estimate...................................................34
VII. Regulatory impact statement.....................................35
VIII.Minority views of Senators......................................36

 IX. Changes in existing Law.........................................69

                               I. Summary

    The purpose of Senate Joint Resolution 14 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 States.''
    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. The American flag has inspired men and women to 
accomplish courageous deeds that won our independence, made our 
Nation great, and advanced our values throughoutthe world. From 
the battlefields of the American Revolution where we won our freedom to 
the battlefields of World War II where we won freedom for other peoples 
to the classrooms across our country where our children pledge 
allegiance to the flag, the American flag has inspired a love and 
respect for our people and our values that have made our Nation the 
greatest force for liberty the world has ever known.
    For the overwhelming majority of our history, our 
statesmen, our legislatures, and our courts have recognized the 
special value of the American flag as a symbol of our 
sovereignty as a nation and of our commitment to freedom. And 
through their Federal and State officials, the American people 
recognized that ``love both of common country and of State will 
diminish in proportion as respect for the flag is weakened.'' 
Halter v. Nebraska. 205 U.S. 34, 42 (1907). Thus, as with 
numerous other societal interests, the legislatures and the 
courts balanced society's interest in protecting the flag with 
the individual's first amendment right to freedom of speech. 
The legislatures of the Federal Government, the District of 
Columbia, and some 48 States adopted statutes preventing 
physical desecration of the flag, and the courts upheld these 
statutes. Thus, these statutes, and the judicial opinions that 
interpreted them, struck the balance in favor of the 
Government's interest in protecting the flag over the 
individual actor's interest in choosing physical destruction of 
the flag as the means to convey a particular message instead of 
the readily available means of oral or written speech to convey 
the same message.
    In 1989, however, while retaining the traditional balance 
for numerous other societal interests that affected the first 
amendment, the Supreme Court broke with legal tradition and 
restruck the balance in favor of a nearly absolute protection 
for the interest of the actor in choosing physical destruction 
of the flag as a means of expressing a particular idea. Texas 
v. Johnson, 491 U.S. 397 (1989). After the Supreme Court 
rejected Congress' statutory response to Johnson as 
unenforceable, United States v. Eichman, 496 U.S. 310 (1990), 
an overwhelming majority of the American people wanted a 
constitutional amendment to protect their flag. The proposed 
amendment would restore to the flag the traditional balanced 
approach that existed for most of our history and continues to 
exist for other societal interests that affect an individual's 
interest in freedom of speech. Once restored, the balanced 
approach would protect the physical integrity of the flag, 
while retaining full protections for oral and written speech 
through which an individual may convey his particular message.
    The effort to enact S.J. Res. 14 is the bipartisan result 
of a widespread, grassroots call for the adoption of a 
constitutional amendment permitting Congress to protect the 
flag from physical desecration. Senators Orrin G. Hatch (R-UT) 
and Max Cleland (D-GA) are the principal Senate cosponsors. 
Congressmen Randy Cunningham (R-CA) and John P. Murtha (D-PA) 
are leading the effort in the House of Representatives on H.J. 
Res. 33, the House counterpart to S.J. Res.14.
    For the reasons set forth in this report, the Judiciary 
Committee reported S.J. Res. 14 to the full Senate with a 
favorable recommendation, and urges that it be adopted.

                        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 Lee Johnson had been convicted of violating a 
Texas statute for the knowing physical desecration of an 
American flag. Johnson had burned a flag at a political 
demonstration outside City Hall in Dallas, TX, 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 Constitution of the 
United States, 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 veterans' 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) 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. 
    On October 5, 1989, the Senate passed H.R. 2978, which was 
enacted on October 28, 1989. Under this statute, codified at 18 
U.S.C. 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 a 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), struck down the 1989 
act under the new rule announced in Johnson. 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, after 
Johnson, now encompassed the ``right'' of these individuals to 
engage in physically destructive conduct toward the flag.
    Shortly after the Supreme Court's decision in Eichman, 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 
Constitution of the United States 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 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 toobtain the necessary two-thirds vote of the full 
Senate, by a vote of 63 to 36.
    On February 4, 1998, Senators Hatch and Cleland, as 
principal cosponsors, along with a bipartisan group of 53 
additional cosponsors, introduced Senate Joint Resolution 40, 
another proposed amendment to the Constitution identical to 
that voted on by the Senate in 1995.
    On March 25, 1998, a hearing on S.J. Res. 40 was held by 
the Subcommittee on the Constitution, Federalism, and Property 
Rights of the Judiciary Committee. 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 40. Following the full Committee 
vote, the Committee held a hearing on July 8, 1998. However, 
the Senate was not able to vote on S.J. Res. 40 before the 
105th Congress adjourned.
    The previous year, the House Committee on the Judiciary had 
addressed a similar resolution, H.J. Res. 54, and favorably 
reported it 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.
    Efforts to protect the flag did not end there, however. In 
response to the continuing groundswell of support by the 
American people for constitutional protection of the physical 
integrity of their flag, Senator Hatch, along with Senator 
Cleland, introduced S.J. Res. 14 on March 17, 1999. S.J. Res. 
14, the Senate's most recent effort to pass a constitutional 
amendment to permit Congress to enact legislation prohibiting 
the physical desecration of the American flag, is identical to 
S.J. Res. 40 that was introduced in 1998. Senators Hatch and 
Cleland were joined by an additional 55 original cosponsors in 
this effort.
    On February 24, 1999, a resolution proposing an amendment 
identical to that proposed in S.J. Res. 14 was introduced in 
the House of Representatives as H.J. Res. 33 by Congressmen 
Randy Cunningam (R-CA) and John P. Murtha (D-PA) and 260 
additional original cosponsors.
    On April 20, 1999, the Senate Judiciary Committee held a 
hearing on S.J. Res. 14. The Committee heard testimony from 
retired Maj. Gen. Patrick Brady, chairman of the Citizens Flag 
Alliance, Sumner, WA; Maribeth Seely, fifth grade teacher, 
Branchville, NJ; Prof. Gary May, University of Southern 
Indiana, Newburgh, IN; Rev. Nathan Wilson, West Virginia 
Council of Churches, Charleston, WV; retired Lt. General Edward 
Baca, former chief, National Guard Bureau, Albuquerque, NM; and 
Professor Richard Parker, Williams Professor of Law, Harvard 
Law School, Cambridge, MA.
    On April 21, 1999, the resolution was polled out of the 
Subcommittee by a vote of 5 to 3, and referred to the full 
Judiciary Committee.
    On April 28, 1999, the Judiciary Committee held a second 
hearing on S.J. Res. 14. The Committee heard testimony from 
Senator John Chafee of Rhode Island; Senator John McCain of 
Arizona; Senator Bob Kerrey of Nebraska; Senator Max Cleland of 
Georgia; Senator Chuck Hagel of Nebraska; former Senator John 
Glenn of Ohio; and Randolf Moss, Acting Assistant Attorney 
General of the Office of Legal Counsel, Department of Justice, 
Washington, DC.
    The Committee took up the legislation on April 29, 1999, 
and voted 11 to 7 to report favorably S.J. Res 14 to the full 

                            III. Discussion

                A. A Brief History of the American Flag

               1. 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 
1,000 years 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.'' The revision of part of the 
British flag was consistent with the oncoming state of war 
between Great Britain and America. 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.

                        2. 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 
    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.
    On September 3, 1777, John Marshall, the future Chief 
Justice, fought under the American flag at the Battle of 
Cooch's Bridge. Marshall and his fellow soldiers inflicted 
substantial casualties on the British forces of Lord 
    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 by 
Kentucky the next year. 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 as a tribute to the flag flying high above Fort 
    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 providing that upon admission of each 
new State into the Union one star be added to the flag on the 
Fourth of July following the State's date of admission. This 
marked the beginning of the most detailed legislative provision 
for the design of the national symbol.

                3. ORIGINS OF THE NICKNAME ``OLD GLORY''

    The nickname ``Old Glory'' is said to have been given to 
the flag by Capt. William Driver. Captain Driver first sailed 
as a cabin boy at age 14, from his home town 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 out 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 
    By the time of the Civil War, everyone in and around 
Nashville recognized Captain Driver's ``Old Glory.'' Possession 
of any Union flag deep in Confederate territory meant real 
danger. The Confederates were determined to find and destroy 
Driver's flag, but repeated searches revealed no trace of 
Driver's cherished banner.
    It was not 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 Glory.''

          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 throughout 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 Baltimore 
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 this 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 a 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. 387-88.)

    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 Allies.
    And now they're coming home to us with glory in their eyes.

    Oh it's home again, America for me !
    Our hearts are turning home again and there we long to be,
    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 sea,
    ``America swears brotherhood with all the just and free.''
    They wrote that word victorious on fields of mortal strife,
    And many a valiant lad was proud to seal it with his life.

    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 done;
    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 the lands beneath the sun America is best.
    We're going home to our own folks, beyond the ocean bars,
    Where the air is full of sunlight and the flag is full of stars.

    Wartime, not unsurprisingly, has always been a time for our 
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 
ofsovereignty 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.
    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 urge them 
to lead a bipartisan effort in the Senate to pass a flag 
protection 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 April 
20, 1999, before the Committee on the Judiciary, Gen. Edward 
Baca testified concerning Jose Quintero, an American prisoner 
of war in a Japanese prison camp during World War II, who 
risked his life to make an American flag that kept up the 
morale of the prisoners. General Baca stated:

          Jose so loved his country, that he looked for a way 
        to express that love. He wanted to honor his friends 
        and to make a symbol for himself to prove that he had 
        not been ``broken'' in spirit. Most of all he wanted to 
        honor what he calls ``The real heroes of the war''--
        those who made the ultimate sacrifice, those dying all 
        around him. He began a project which would have meant 
        instant death to him had he been caught.
          He began to scrounge material in the form of a red 
        blanket, and white bed sheets stolen from the Japanese 
        Guards. The blue background came from Filipino 
        dungarees. He began to fashion these into an American 
        flag aided by a Canadian soldier, a double amputee who 
        worked in the tailor shop.
          At that time, Jose did not even know how many states 
        were in the Union. He had to ask an officer to tell him 
        the significance of the thirteen stripes and the forty-
        eight stars in the design. The staff was made from a 
        Japanese prod used to discipline the prisoners. The 
        tassels were added later and made from the parachute 
        cord from chutes used to drop supplies into the camp 
        after the war. This flag took him well over one year to 
        complete. He wrapped it in a piece of canvas and kept 
        it buried in the dirt under his bunk.
          Close to the end of the war, Jose and his companions 
        heard American bombers approaching the unmarked POW 
        camp. Jose took his flag out in the open and waved it 
        at the incoming aircraft. The pilot in the lead plane 
        saw him, tipped his wing in acknowledgment, and flew 
        past the camp. Through this valiant act, Jose risked 
        his life to save the lives of his fellow prisoners.
          * * * Mr. Quintero is what peace and freedom are all 
        about. Heroes like him and those here in the room today 
        are what have made this country great and what makes me 
        so proud to be an American.
          I'm sorry that Jose could not be here today to tell 
        you, in his own words, what the flag means to him and 
        his fellow veterans. Were he here today, I am certain 
        his request to you would have been to return legal 
        protections to the flag. I appear humbly, on his 
        behalf, to ask that you pass the flag protection 
        constitutional amendment in the spirit of what lies 
        beneath the motivations of my dear friend, which lead 
        to such astounding acts of heroism and self-sacrifice 
        for our great nation.

(Written statement of Ret. Lt. Gen. Edward Baca, April 20, 

    On April 28, 1999, Senator John McCain, whose faithful 
service and heroism as a prisoner of war during the Vietnam War 
have proven to be an inspiration to so many of his Senate 
colleagues and to many Americans--young and old alike--
testified about one of his cell mates at the ``Hanoi Hilton'' 
in the Vietnam War. Mike Christian, who sewed an American flag 
on the inside of his shirt. Mr. Christian would lead his fellow 
prisoners of war in the pledge of allegiance to the flag. After 
being severely beaten on account of the flag, Mr. Christian 
made another flag, not for his own morale, but for the morale 
of the other prisoners. This flag and the heroics it inspired 
helped the American prisoners survive their prolonged captivity 
under brutal conditions. Senator McCain added, ``All of us are 
products of our experience in life * * *, and that is my 
experience, and that is my view about the sanctity of the 
American flag and the way that it should be treated.'' 
(Testimony of Senator John McCain, April 28, 1999.) Senator 
McCain has been a committed advocate for this important 
    At the April 20, 1999, hearing, Ms. Maribeth Seely, a 
fifth-grade teacher from Branchville, NJ, testified:

    Now when I teach U.S. history to my ten- and eleven-year-
old students, we focus on the * * * values of patriotism and 
good citizenship. We write to veterans to show that we remember 
and have donated money to a homeless shelter for veterans. One 
year, my class invited parents and grandparents who served in 
the armed forces to participate in a Memorial Day observance. 
One granddad, Mr. Michael Koch, had seized a Nazi flag from a 
municipal building in Germany during World War II. The whole 
school applauded Mr. Koch and the nine others who gathered 
there that day. It was important to have the faces of these 
real heroes emblazoned on the flag and forever placed in the 
memory of the students.
    I believe that young people need to have a more personal 
connection to our flag and to our great country. Are they 
learning to connect? I feel that the glue that has kept us all 
together for over 200 years has eroded over time and continues 
to weaken us. For example many nationalities have their own 
parades. I feel comfortable with this example because as an 
Irish American, St. Patrick's Day parades are a must. Thousands 
turn out. But what about our Memorial Day parades? Many are 
sparsely attended. Shouldn't all Americans display a greater 
sense of national pride?

           *         *         *         *         *

    In America, there are many different opinions, different 
customs, different lifestyles. We celebrate our differences as 
part of a great melting pot. I worry that there will not be the 
glue to keep us together, to unify us. The American flag can be 
part of the glue, the strength, the reminder of who we are. 
What legacy are we giving future generations if we will have 
nothing in common with each other, nothing to bind us together?
    Perhaps we should ask our children this question. Julie 
Brehm, age 11, feels so lucky to live in the United States. She 

          I could have stayed in South America where I probably 
        would have died. I remember the time in my home country 
        when everything was horrible and full of worry. I was 
        adopted from Colombia. The American flag means freedom 
        to some, but to me it means life. The soldiers that 
        fought for America made sure that I had a great country 
        to come to. Now when I remember the scenes in South 
        America, I look at the American flag and say, ``Thank 

           *         *         *         *         *

    Molly E. Green, age 10:

          The American flag is the greatest symbol I've ever 
        known. People should look deeper into their hearts. 
        They should find true dignity and respect for those who 
        fought for them.

    Katie Satter, age 10:

          ``I pledge allegiance to the flag.'' These are the 
        first six words you say pretty much every morning. Do 
        you ever think of what those words mean? They meant 
        everything to people who fought for our country. They 
        meant so much, some died over it.

    Austin Dolan, age 11:

          When we think of the American flag, we see battles, 
        wars and soldiers, but do we see other faces inside of 
        the flag? These people are the volunteers who strived 
        to make America better. Do we see the faces of the 
        people who wrote the Constitution? Do we see the faces 
        of the workers who have changed America from an empty 
        land to a blooming flower? Do we see the farmers who 
        tilled the soil, Congress who protected it, the 
        volunteers who loved it, and the veterans who kept it 
        free? Austin finally asked:

          Why do schools teach respect for the flag if there is 
        no law to protect it?

    That last question caused me to think. Austin is only 11 
years old but he asks a very important question. Why do 
teachers instruct students to take off their hats and stand 
when the flag passes in front of them when our own government 
has not seen fit to pass a flag amendment? If this flag 
amendment is not passed, how am I going to answer the question, 
``WHY?'' Why, Mrs. Seely, did our Congress not consider the 
flag to be a national symbol worthy of protection? We have laws 
against acts of hatred. What about hatred for our country and 
our flag? Shouldn't it be wrong to desecrate our flag? Kids 
think so and so does this average American.
    Another student, Tim Hennessey, 11, said, ``We salute the 
flag every morning to show respect. I would never desecrate the 
flag. I am only eleven years old and I know not to. Why do we 
allow the desecration of the flag?''
(Written statement of Maribeth Seely, Apr. 20, 1999.)

    General Norman Schwarzkopf sent a letter to the Committee 
in support of S.J. Res. 14, which Senator Hatch read the 
following portion of at the April 28, 1999, hearing:

          I am honored to have commanded our troops in the 
        Persian Gulf War and humbled by the bravery, sacrifice 
        and ``love of country'' so many great Americans 
        exhibited in that conflict. These men and women fought 
        and died for the freedoms contained in the Constitution 
        and the Bill of Rights and for the flag that represents 
        these freedoms, and their service and valor are worthy 
        of our eternal respect. * * *
          I am proud to lend my voice to those of a vast 
        majority of Americans who support returning legal 
        protections for the flag. * * *

(Transcript of hearing, April 28, 1999.)

    Further, Gen. Patrick Brady testified on April 20, 1999, 
that throughout our history there have been more Medal of Honor 
awards for courage on the field of battle with respect to 
protecting the flag than any other specific type of action. 
Moreover, General Brady testified concerning an American F-117A 
pilot who was recently shot down during the conflict in Kosovo, 
but later rescued by American troops. The pilot carried an 
American flag with him and reported that the flag inspired him 
to survive during his darkest hours behind enemy lines. 
(Testimony of retired Gen. Patrick Brady, April 20, 1999.)
    The American flag is the preeminent symbol of our history, 
our values, our freedoms, and the price we have paid around the 
world for these freedoms. Throughout our history, the flag has 
inspired our soldiers and our people to the great deeds that 
have won and preserved this Nation's independence. The 
Government has a vital interest in preserving the symbol that 
has inspired the actions that have preserved this country and 
its values.

              C. A Brief Legal History of Flag Protection

    Throughout our history, our laws have reflected the values 
represented by the flag and our government's interest in 
preserving it. From the Colonial era to the founding of the 
nation to the 20th century, Americans have demanded respect for 
their flag through law.

                 1. flag protection in the colonial era

    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.1 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 
    \1\ See 1 John Winthrop, ``The History of New England from 1630 to 
1649'' 175 (James Savage ed., 1953).
    Endecott's Case establishes a key historic point: from the 
earliest days of the legal system in America, the law deemed an 
individual who defaced a flag, even domestically and in 
peacetime, to have committed a punishable act. Defacing the 
flag invaded a sovereign governmental interest, even when 
undertaken for reasons of protest. At the time, the colonists 
saw the need to punish the act that damaged the Government's 
sovereignty: defacing the flag would be taken as an act of 
rebellion, even when unaccompanied by danger of violence or 
general revolt.2
    \2\ Endecott's Case reflects the traditional balance between the 
interest of society in preserving the flag and the interest of the 
actor in choosing a means of expression. Some have suggested that this 
case represents an example of the British oppression that prompted the 
American colonies to declare their independence. However, the 
Declaration of Independence provides a thorough list of the grievances 
that prompted the Americans to sever their ties with Great Britain, 
including taxation without consent, deprivation of the right to trial 
by jury, and erecting a bureaucracy that financially burdened the 
people. ``The Declaration of Independence par., 15, 12 (U.S. 1776). The 
Declaration of Independence does not list the deprivation of the right 
to physically destroy a flag as prompting the American Revolution.

 2. 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, was 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 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 
particular ideology, loyalty, 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 subsequently explained:

        From the earliest periods in the history of the human 
        race, banners, standards, and ensigns have been adopted 
        as symbols of the power and history of the peoples who 
        bore them. It is not, then, remarkable that the 
        American people, acting through the legislative branch 
        of the government, early in their history, prescribed a 
        flag as symbolical of the existence and sovereignty of 
        the nation. * * * For that flag every true American has 
        not simply an appreciation, but a deep affection. No 
        American, nor any foreign-born person who enjoys the 
        privileges of American citizenship, ever looks upon it 
        without taking pride in the fact that he lives under 
        this free government. Hence, it has often occurred that 
        insults to a flag have been the cause of war, and 
        indignities put upon it, in the presence of those who 
        revere it, have often been resented and sometimes 
        punished on the spot.

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

    The original intent of the nation's Founding Fathers 
clearly indicates the importance of protecting the flag as an 
incident of American sovereignty.

a. 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 embodied 
in 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 President 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, 
Madison pronounced an incident of 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 nations.'' 
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 Madison's view that ``the indignity 
offered to the sovereignty and flag of the nation demands * * * 
an honorable reparation * * * [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 demonstrates his 
belief that protecting the physical integrity of the flag 
protects 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 
First 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.

b. 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. 3 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.
    \3\ 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 the 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, and considered protecting it 
and punishing its abusers highly important, even after the 
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 speech. 
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 that the Government's interest of protecting the 
sovereignty of the Nation was consistent the interest of 
protecting an individual's first amendment right to free 
    Thus, from the time of the Endecott Case to the present, 
protection of the flaghas 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 
controlling expression. Thus, the Founders easily balanced the interest 
of the Government in protecting of the flag as an incident of 
sovereignty with the first amendment interest of the individual to 
freedom of speech.

                  3. statutory protection of the flag

    Over the years, Congress and the States have recognized the 
devotion our diverse people have for the flag. They have 
enacted statutes that both promote respect for the flag and 
protect the flag from desecration.

a. Promotion of respect for the flag

    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'' (4 U.S.C. 4). 
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.
    In 1987, Congress chose to honor the flag by designating 
John Philip Sousa's ``The Stars and Stripes Forever'' as the 
national march (36 U.S.C. 304). Further, 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, and is 
not legally enforceable.

b. Protection for the flag: striking the balance

    After a rash of flag desecrations arising from the 
presidential campaign of 1896, States began to prosecute the 
commercial use of the American flag, which was deemed 
disrespectful, as well as verbal and physical desecration of 
the flag. 4 While some of these older statutes were 
struck down by activist courts under the now-defunct Lochner 
rationale, dealing with substantive due process and economic 
legislation, the courts perceived no first amendment problem 
with the statutes. 5
    \4\ In Rushtrat v. People, 57 N.E. 41, 46 (Ill. 1900), and People 
ex rel. McPike v. Van De Carr, 86 N.Y.S. 644, 91 A.D. 20 (App. Div. 
1904), the courts of Illinois and New York struck down statutes 
prohibiting the certain commercial or advertising uses of the national 
flag, but permitting other commercial uses. The courts held the 
statutes were unenforceable based on the implied constitutional right 
to choose and to carry on one's occupation without governmental 
interference and based on economic classifications made by the 
statutes. Rushtrat, 57 N.E. at 46; McPike, 86 N.Y.S. at 649-50.
    This brand of conservative judicial activism, which was used to 
strike down pro-labor and other economic legislation, came to its 
fruition in Lochner v. New York, 198 U.S. 45 (1905). Since Lochner, 
however, the Supreme Court and the overwhelming majority of the state 
courts have since abandoned the activist judicial review of economic 
legislation. See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379 
    \5\ In McPike, 86 N.Y.S. at 648, the Supreme Court of New York, 
specifically upheld the portion of the statute that prohibited 
desecration or casting contempt upon the flag, in a noncommercial 
context, as a means of preventing breaches of the peace.
    The Supreme Court of the United States, at least with 
respect to the American flag, eschewed the Lochner rationale, 
and upheld a state flag protection statute in Halter v. 
Nebraska, 205 U.S. 34 (1907). The Nebraska statute viewed both 
commercial use of the flag and physical mutilation of the flag 
as equally repugnant forms of desecration. Chief Justice Harlan 
wrote for the Court:

        It is not, then, 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.

 Halter, 205 U.S. at 41, 42.

That the Court viewed commercial use of the flag as demeaning 
the integrity of the Nation's preeminent symbol is made clear 
by its statement, ``Such [commercial] use tends to degrade and 
cheapen the flag in the estimation of the people, as well as to 
defeat the object of maintaining it as an emblem of national 
power and national honor.'' Id. at 42. Recognizing the 
importance of the flag to the Nation, the Supreme Court upheld 
Nebraska's statute that punished commercial and noncommercial 
desecration of the flag.
    Holdings such as Halter precipitated the National 
Conference of Commissioners on Uniform State Laws to approve 
the Uniform Flag Act in 1917 which was similar to the statute 
approved in Halter. 6 Although the opinion dealt 
directly only with the commercial desecration portion of the 
statute, the Commissioners were of the opinion that Halter 
affirmed in all respects the validity of a statute that 
prohibited all disrespect for the flag, whether by commercial 
use or by casting contempt on the flag by word or act. 
Accordingly, the Commissioners drafted a similar model statute. 
A number of States soon adopted all or part of the Uniform Flag 
Act as their flag protection statute or as a supplement to 
previously existing statutes. These States included Arizona, 
Louisiana, Maine, Maryland, Michigan, Mississippi, New York, 
Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont, 
Virginia, Washington, and Wisconsin. 7
    \6\ Section 3 of the Uniform Flag Act provided: ``No person shall 
publicly mutilate, deface, defile, defy, trample upon, or by word or 
act cast contempt upon any such flag, standard, color, ensign or 
    \7\ By 1951, these statutes were found in the various state laws as 
follows: Arizona, A.C.A. Sec. 43.2401 (1939); Louisiana, R.S. 14:116, 
14:117 (1950); Maine, R.S. c. 128 (1944); Maryland, Code Supp. 
Sec. 2159 (1947); Michigan, Comp. Laws Sec. Sec. 750.244-750.247, 
750.566 (1948); Mississippi, Code Sec. 2159 (1942); New York, 
McKinney's Penal Law, Sec. 1425, subdi. 16; Pennsylvania, 18 P.S. 
Sec. 4211; Rhode Island, Gen. Laws c. 612, Sec. Sec. 38, 39 (1938); 
South Dakota, SDC 65.0601 to 65.0606; Tennessee, Williams' Code 
Sec. Sec. 102-107; Vermont, V.S. Sec. Sec. 8590-8605; Virginia, Code 
Sec. Sec. 18-354 to 18-360 (1950); Washington, Rem. Rev. Stat. 
Sec. Sec. 2675-1 to 2675-7; Wisconsin, St. Sec. Sec. 348.479-348.484 
    In 1968, in response to the Vietnam War protests, Congress 
added Federal protection to the long-established State flag 
protection statutes by enacting 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 one year, for anyone who 
``knowingly casts contempt upon any flag of the United States by 
publicly mutilating, defacing, defiling, burning or trampling upon it * 
* * .''
    Indeed, prior to 1989, Congress, along with 48 States and 
the District of Columbia, had regulated physical misuse of the 
American flag. These statutes recognized the vital Government 
interest at stake in preserving the preeminent symbol of our 
Nation's history and people and reflected a balancing of this 
interest against the interest of the actor in conveying a 
message through the particular means of physically destroying 
the flag instead of through the traditional means of oral or 
written speech. On balance, these legislatures determined that 
the Government's interest prevailed.

c. Judicial application of flag protection statutes: respecting the 

    Even after the Supreme Court held that the first 
amendment's free speech clause applied to the States, Gitlow v. 
New York, 268 U.S. 652 (1925), flag desecrations were punished. 
For example, in 1941, in State v. Schlueter, 23 A.2d 249 (N.J. 
1941), the Supreme Court of New Jersey affirmed a conviction 
for physical desecration of the American flag. Likewise, in 
1942, in Johnson v. State, 163 S.W.2d 153 (Ark. 1942), the 
Supreme Court of Arkansas affirmed a conviction for publicly 
exhibiting contempt for the flag. Of special significance, is 
the Arkansas court's refusal to accept the dissent's argument 
that free speech protections prevented prosecution of the 
defendant's desecration of the flag. Id. at 155-59 (Smith, 
C.J., dissenting). In People v. Picking, 42 N.E.2d 741 (N.Y.), 
cert. denied, 317 U.S. 632 (1942), the Supreme Court of New 
York affirmed a conviction for flag desecration and the Supreme 
Court of the United States denied certiorari review, allowing 
the conviction to stand. The results of these cases reflected 
the generally accepted legal tradition that punishment of flag 
desecration represented a balance of society's interest in 
protecting the flag and the actor's interest in choosing 
physical desecration as a means to convey a message instead of 
the traditional means of oral and written speech. The 
legislatures had struck the balance in favor of protecting 
society's interest, and the courts respected this balance.
    In 1968, in United States v. O'Brien, 391 U.S. 367 (1968), 
the Supreme Court upheld a conviction for burning a draft card, 
even though the conduct was intended to convey a political 
message. The Court stated: ``We cannot accept the view that an 
apparently limitless variety of conduct can be labeled 
``speech'' whenever the person engaging in the conduct intends 
thereby to express an idea.'' Id. at 376. The Court balanced 
society's interest in maintaining an effective draft system 
against the draft card burner's interest in conveying a message 
through the particular means of physically destroying a draft 
card instead of through the traditional means of oral or 
written speech.8 On balance, the Court determined 
that the government's interest prevailed.9 In 1969, 
in Street v. New York, 394 U.S. 576 (1969), the Court 
overturned a conviction of a defendant who burned a flag while 
speaking against the flag. The Court overturned the conviction 
on the narrow ground that the first amendment protected the 
defendant's verbal expression, but did not address the conduct 
of burning the flag. Id. at 579.10 However, in 1971, 
in Radich v. New York, 401 U.S. 531 (1971), the Supreme Court 
affirmed, by an equally divided vote, a conviction based solely 
on an act of physical desecration of the flag under a New York 
statute that punished both words and acts of desecration. In so 
doing, the Supreme Court upheld the traditional balance between 
society's interest in protecting the flag and the actor's 
interest in choosing to convey a message by destructive means 
instead of by readily available oral or written means.
    \8\ The four-part test announced in O'Brien was:
      [A] government regulation is sufficiently justified [1] if 
      it is within the constitutional power of the Government; 
      [2] if it furthers an important or substantial governmental 
      interest; [3] if the governmental interest is unrelated to 
      the suppression of free expression; and [4] if the 
      incidental restriction on alleged First Amendment freedoms 
      is no greater than is essential to the furtherance of that 

391 U.S. at 377.

    \9\ In Stromberg v. California, 283 U.S. 359 (1931), and West 
Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the 
Supreme Court had recognized, respectively, that a flag has 
communicative value and that school children could not be compelled to 
salute the flag in violation of their religious beliefs. These cases 
did not hold, however, that the Government's interest in preserving the 
preeminent symbol of our history and our people could not be balanced 
against an actor's interest in conveying a message through the 
particular means of physically destroying the flag instead of the 
traditional means of oral or written speech.
    \10\ Chief Justice Warren, and Justices Black, White, and Fortas 
all dissented. Chief Justice Warren took the majority to task for 
avoiding the question of whether the conviction could be premised on 
the physical desecration of the flag and stated: ``I believe that the 
States and the Federal Government do have the power to protect the flag 
from acts of desecration and disgrace.'' Street v. New York, 394 U.S. 
576, 605 (1969) (Warren, C.J., dissenting). Justice Fortas agreed with 
Chief Justice Warren. Id. at 615 (Fortas, J., dissenting). Justice 
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.'' Id. at 610 (Black, J., dissenting). Justice White 
also opined that the majority erred in avoiding the physical- 
desecration issue and stated that he would sustain a conviction for 
flag burning. Id. at 615 (White, J., dissenting).

   D. Judicial Amendment of the Constitution: Restriking the Balance
    In 1974, in two decisions, the Supreme Court began to 
weaken the O'Brien decision with respect to the physical 
desecration of the American flag and to shift the balance away 
from the Government's interest in preserving the flag and 
toward the actor's interest in choosing destruction of the flag 
as a means to convey a message. In Smith v. Goguen, 415 U.S. 
566, 581-82 (1974), the Court overturned a flag-desecration 
conviction, stating that the Massachusetts flag-desecration 
statute, which punished words and acts of desecration, was void 
for vagueness, but adding ``[c]ertainly nothing prevents a 
legislature from defining with substantial specificity what 
constitutes forbidden treatment of United States 
flags.''11 The Court pointed to the Federal flag 
protection statute, which punished only acts of desecration, 
not words, as an example of a constitutional flag protection 
statute. Id. at 582 n.30. In Spence v. Washington, 418 U.S. 405 
(1974), the Court broke with O'Brien by considering the 
communicative intent of the actor in desecrating his privately 
owned flag on private property, and issued a narrow, limited 
holding that the flag misuse statute, as applied to the 
particular defendant under the particular facts of the case, 
violated the first amendment.12 The Court, however, 
was unwilling to state that there was no Government interest 
that outweighed the actor's interest in conveying a message 
through the particular means of physically destroying the flag 
instead of through the traditional means of oral or written 
    \11\ Justice White concurred in the judgment, but added ``I would 
not question those statutes which proscribe mutilation, defacement, or 
burning of the flag or which otherwise protect its physical integrity, 
without regard to whether such conduct might provoke violence.'' Smith 
v. Goguen, 415 U.S. 566, 587 (White, J., concurring the judgment). Then 
Associate Justice Rehnquist, joined by Chief Justice Burger, dissented, 
stating that he believed that the statute at issue passed 
constitutional muster under the O'Brien test and noting that the 
statute punished flag abuse regardless of whether a communicative 
intent existed and was thus unrelated to the suppression of free 
speech. Id. at 599 (Rehnquist, J., dissenting). Justice Blackmun also 
dissented, stating that the first amendment would not bar the 
defendant's conviction. Id. at 591 (Blackmun, J., dissenting).
    \12\ Chief Justice Burger dissented, stating:

        If the constitutional role of this Court were to strike 
      down unwise laws or restrict unwise application of some 
      laws, I could agree with the result reached by the Court. 
      That is not our function, however, and it should be left to 
      each State and ultimately to the common sense of its people 
      to decide how the flag, as a symbol of national unity, 
      should be protected.

Spence v Washington, 418 U.S. 405, 416 (1974) (Burger, C.J., 
dissenting). Then Associate Justice Rehnquist, joined by Chief Justice 
Burger and Justice White, also dissented, stating:

        The statute under which appellant was convicted is no 
      stranger to this Court, a virtually identical statute 
      having been before the Court in Halter v. Nebraska, 205 
      U.S. 34 * * * (1907). In that case the Court held that the 
      State of Nebraska could enforce its statute to prevent use 
      of a flag representation on beer bottles, stating flatly 
      that ``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 * * 
      *.'' The Court then continued: ``Such use tends to degrade 
      and cheapen the flag in the estimation of the people, as 
      well as to defeat the object of maintaining it as an emblem 
      of national power and national honor.''

    \13\ A few lower courts, however, had begun to anticipate the trend 
in the Supreme Court's weakening of the traditional balance and had 
begun to strike down their State's flag desecration statutes. See, 
e.g., People v. Vaughn, 514 P.2d 1318 (Colo. 1973).
    Nonetheless, there was a dramatic change in Supreme Court 
jurisprudence. This change was clearly illustrated by the 
Radich case in which, during a 3-year time span, the Federal 
courts first affirmed and then overturned the exact same 
conviction based on the intervening changes in Supreme Court 
jurisprudence. In 1971, the Supreme Court affirmed, by an 
equally divided Court, Radich's flag-desecration conviction 
under a statute that punished both words and acts of 
desecration. Radich, 401 U.S. 531. However, by 1974, after the 
Supreme Court handed down Smith v. Goguen, 415 U.S. 566, and 
Spence v. Washington, 418 U.S. 405, the district court 
overturned Radich's conviction in a habeas proceeding, citing 
Goguen and Spence.14 United States ex rel. Radich v. 
Criminal Court of the City of New York, 385 F. Supp. 165 
(S.D.N.Y. 1974).
    \14\ After issuing its opinions in Smith v. Gougen and Spence v. 
Washington, the Supreme Court affirmed, without an opinion, a lower 
court's judgment that used the vagueness and overbreadth doctrines to 
strike down a portion of New York statute that would have broadly 
prohibited use of representations of the flag as campaign buttons or 
posters. Cahn v. Long Island Vietnam Moratorium Comm., 418 U.S. 906 
(1974), aff'g 437 F.2d 344 (2d Cir. 1970). Prior to Gougen and Spence, 
the New York Court of Appeals had refused to apply the Second Circuit's 
holding in Cahn to strike down the desecration portion of the New York 
statute, holding instead, that photographs of a nude draped with a flag 
did not within the proscription of the flag desecration provision. 
People v. Keough, 290 N.E.2d 819 (N.Y. 1972).
    As late as 1982, however, the Supreme Court denied 
certiorari review of a case involving a conviction for the 
physical desecration of a flag under the Federal statute that 
punished only acts, not words, of desecration. Kime v. United 
States, 459 U.S. 949 (1982). The certiorari denial, which 
allowed the flag desecration conviction to stand, came in spite 
of a strenuous dissent by Justice Brennan to provide absolute 
protection to the destructive conduct. Id. (Brennan, J., 
dissenting). The majority of the Supreme Court still refused to 
abandon completely the traditional balance of society's 
interest in protecting the flag and the individual's interest 
in conveying an idea through physically destructive means.
    By 1989, however, the Court was prepared to completely 
abandon Halter, O'Brien, and Radich and to restrike the 
constitutional balance against the Government's interest and in 
favor of the flag desecrator's interest. In Texas v. Johnson, 
491 U.S. 397 (1989), by a 5-to-4 vote, the Supreme Court 
overturned a conviction for the physical desecration of an 
American flag on the broad grounds that the government's 
interest in preserving the Nation's preeminent symbol did not 
outweigh the interest of the flag desecrator in choosing to 
convey a message through the particular means of physically 
destroying the flag instead of through thetraditional means of 
oral or written speech. The Court effectively created for Gregory Lee 
Johnson an absolute first amendment right to burn and spit on the 
American flag.15
    \15\ 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 protestor, 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, protestors 
chanted: ``America, the red, white, and blue, we spit on you.'' Johnson 
was convicted of desecration of a venerated object in violation of sec. 
42.09 (a)(3) of the Texas Penal Code which, among other things, made 
illegal the intentional or knowing desecration of a national flag. 
Johnson, 491 U.S. at 499-400.
    Justice Stevens's eloquent dissent which called for 
retaining the traditional constitutional balance that had been 
controlling for decades, stated:

          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.

Johnson, 491 U.S. at 436-39 (Stevens, J., dissenting).

    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.'' Johnson, 491 U.S. at 422 (Rehnquist, C.J., 
dissenting). Chief Justice Rehnquist continued later in his 

        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 response to this final step in a dramatic change in 
first amendment jurisprudence, 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 actor's newly minted, so-
called right to burn or otherwise physically mistreat the flag 
as part of expressive conduct. Johnson, 491 U.S. at 413-19. 
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 be 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 a statute--indeed, the Court said so in 
    Nonetheless, Congress did enact a facially neutral statute 
in 1989 (the Flag Protection Act of 1989) with an exception for 
the disposal of worn or soiled flags, as a response to the 
Johnson decision. Based on the new rule announced in Johnson, 
however, the Supreme Court promptly struck it down the statute, 
by a 5-to-4 vote, in United States v. Eichman, 496 U.S. 400, 
405-06 (1990).
    Further, in R.A.V. v. City of St. Paul, 505 U.S. 377, 385 
(1992), the Supreme Court made clear that its newly created, 
absolute protection for destructive conduct toward the flag is 
notaffected by the ``fighting words'' doctrine where a statute 
specifically targets the destructive conduct toward the flag. 
Accordingly, with respect to the particular medium of the American 
flag, the Supreme Court will no longer balance society's interest in 
protecting the flag against the actor's interest in choosing to convey 
a message through the means of physically destroying the flag instead 
of through the traditional means of oral or written speech.

        E. S.J. Res. 14 is the Appropriate Constitutional Remedy

 1. s.j. res. 14 would restore the traditional balance to the court's 
                     first amendment jurisprudence

    Given the Supreme Court's new interpretation of the 
Constitution, which rejects the traditional balancing of 
society's interests with the actor's interest concerning the 
flag, only a constitutional amendment can restore protection to 
the flag. S.J. Res. 14 would restore the traditional balance 
between society's interests and the actor's interest concerning 
the flag that statesmen, legislatures, and courts have 
recognized throughout our Nation's history.
    It must be remembered that the first amendment only 
prohibits abridging the ``freedom of speech.'' The contours of 
this freedom have long been defined in the context of competing 
societal interests. Restoring the traditional constitutional 
balance between society's interest in protecting the flag and 
the actor's interest in destroying it is entirely consistent 
with a number of other societal interests that affect the first 
amendment and for which the Supreme Court has retained the 
balancing approach. Relying on an opinion written by Justice 
Oliver Wendell Holmes, the Court balances society's interest in 
public safety with a speaker's interest in falsely shouting 
``Fire'' in a crowded theater and upholds restrictions on such 
speech. See Schenck v. United States, 249 U.S. 47 (1919). The 
Court balances society's interest in public morals with a 
speaker's interest in transacting in obscenity and upholds 
restrictions on such speech. Miller v. California, 413 U.S. 15 
(1973). The Court balances society's interest in national 
security with a speaker's interest in disclosure of state 
secrets and upholds restrictions on such speech. Snepp v. 
United States, 444 U.S. 507 (1980). The Court balances 
society's interest in shielding people from attacks on their 
character with a speaker's interest in making defamatory or 
libelous statements and upholds restrictions on such speech. 
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The Court 
balances society's interest in maintaining a nonpartisan public 
workforce with a speaker's interest in engaging in partisan 
political activity while working for the Federal Government and 
upholds restrictions on such speech. United States Civil 
Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 
548 (1973). And the Court balances society's interest in 
protecting children with a speaker's interest in commercially 
promoting promiscuous activity by minors and upholds 
restrictions on such speech. New York v. Ferber, 458 U.S. 747 
(1982). Thus, while the Court has recently excepted the 
American flag from the traditional balancing approach, it 
regularly uses the balancing approach to uphold numerous other 
societal interests that affect the first amendment. The 
proposed amendment would restore the balance between society's 
interest in preserving the physical integrity of the flag with 
an actor's interest in choosing to convey a message through a 
particularly destructive means and would uphold traditional 
restrictions on the means of such speech.
    Thus, S.J. Res. 14 would not reduce our historic freedoms 
under the Bill of Rights, but would simply displace a few 
recent judicial modifications of the original first amendment 
by restoring the traditional legal balance with respect to the 
American flag. As Professor Parker stated, ``[i]t is a 
restorative amendment--not a transformative amendment * * * 
[I]t restores the traditional and intended meaning of the First 
Amendment * * *'' (Transcript of Hearing on S.J. Res. 14, Apr. 
20, 1999, at 33). And Prof. Stephen Presser, of the 
Northwestern University School of Law, submitted written 
testimony to the Committee in which he also recognized: ``The 
Flag Protection Amendment does nothing to infringe the First 
Amendment. It does not forbid the suppression of ideas, nor 
does it foreclose dissent. * * * It is an attempt by the 
people, consistent with a century of their history, to reclaim 
the right to declare what kind of a society they want to live 
in.'' (Written statement of Prof. Stephen B. Presser, submitted 
Apr. 28, 1999, at 18.)
    The Bill of Rights is a listing of the great freedoms our 
citizens enjoy. It was never intended to be 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 proposed 
amendment would retain current full first amendment protections 
for any message that the actor wishes to convey with respect to 
the flag, or any other subject, if the actor chooses to convey 
that message through the traditional and nondestructive means 
of oral or written speech. And the proposed amendment affirms 
that without some aspiration to national unity, there might be 
no law, no Constitution, no freedoms such as those guaranteed 
in the Bill or Rights.

      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; (b) enhancing national unity; and (c) protecting 
an incident of our national sovereignty.

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 
government. Without these values, our children will not be able 
to distinguish good from bad or right from wrong. By replacing 
what the Supreme Court has stripped away, the proposed 
amendment will be a step toward restablishing the values that 
made this country great.

b. Enhancing national unity

    The Government has a fundamental interest in protecting the 
most basiccondition 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 endure.

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 
Founding Fathers 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 a ``systematic and severe course of 
punishment.'' Writings of Thomas Jefferson 49 (mem. ed. 1903).

  3. the terms ``physical desecration'' and ``flag'' are sufficiently 
               precise for inclusion in the constitution

    S.J. Res. 14 is a narrowly tailored proposal that would 
control a discrete area of the law. It would supersede Johnson, 
Eichman, and, to the extent necessary, R.A.V., to restore the 
traditional, balanced protection to the American 
flag.16 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.17 It is not self-executing, and thus 
would require an implementing statute that would define the 
terms ``desecration'' and ``flag.'' Experience justifies 
confidence in our judicial system to distinguish between the 
numerous legitimate forms of communication and the act of 
physically desecrating a flag. Prior to the Texas v. Johnson 
decision, the Federal Government, 48 States, and the District 
of Columbia 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, 305 A.2d 676, 680 (N.H. 1973); State v. 
Mitchell, 288 N.E.2d 216, 226 (Ohio 1972); State v. Waterman, 
190 N.W.2d 809, 811-12 (Iowa 1971). Indeed, since the adoption 
of the Uniform Flag Law in 1917, courts have had little problem 
defining ``flag'' and the specific acts of ``desecration.'' 
There is no new ambiguity that would arise from returning to 
the well-established definitions of these traditional terms.
    \16\ Significantly, the flag protection amendment would not disturb 
Congress' power to determine the design of the flag of the United 
States. Congress has that authority under Title 4, U.S. Code, Secs. 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.
    \17\ Moreover, S.J. Res.14 is even more narrowly tailored than the 
proposal considered during the 104th Congress. In contrast to that 
amendment proposal, S.J. Res. 14 would authorize only Congress, not the 
States, to pass a statute to protect the flag from acts of physical 
    In any event, the judicial system would interpret 
``physical desecration'' and ``flag of the United States,'' as 
used in the amendment, in light of general values of free 
speech. These are the types of terms that raise issues of fact 
and degree and context and intent that are 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.
    Moreover, 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 physically 
cast contempt on, the flag. Thus, a constitutional amendment so 
specificas 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. Thus, the proposed 
amendment, like other existing amendments is necessarily drafted in 
broader terms than the implementing legislation would be.
    The Senate in the 106th Congress should not subject S.J. 
Res. 14, 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,'' ``just 
compensation,'' and ``due process of law''--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. In addition, we should not lose 
sight of the fact that all the flag protection amendment does 
is authorize Congress to enact implementing legislation. 
Congress would implement the flag protection amendment with 
specific statutory language which would be subject to 
constitutional requirements.
    Congress had no difficulty in utilizing its constitutional 
power to legislate sensibly on this subject in 1968 and in 
1989. Indeed, at the hearing on April 20, 1999, Chairman Hatch 
proposed adopting implementing legislation similar to the Flag 
Protection Act of 1989. Ninety-one Senators agreed on the 
specific definition of flag and of the acts constituting 
desecration contained in the 1989 Act.18 Thus, the 
Federal flag protection statute that is currently on the books 
already has an overwhelming consensus on the definitions of 
``flag'' and ``desecration.'' Congress will be able to define 
what treatment it believes constitutes desecration. Accidental 
acts are not reachable.
    \18\ The Flag Protection Act of 1989, now codified at 18 U.S.C. 
700, provides in pertinent part:

        (a)(1) Whoever 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.
        (2) This subsection does not prohibit any conduct 
      consisting of the disposal of a flag when it has become 
      worn or soiled.
        (b) As used in this section, the term ``flag of the 
      United States'' means any flag of the United States, or any 
      part thereof, made of any substance, of any size, in a form 
      that is commonly displayed.
    Moreover, the terms ``desecrate'' and ``flag'' will not 
jeopardize carefully crafted implementing legislation under the 
void-for-vagueness doctrine. In Smith v. Goguen, 415 U.S. 566 
(1974), the Court found a portion of a Massachusetts law void 
because it was unconstitutionally vague. The Massachusetts 
statute made illegal publicly mutilating, trampling upon, 
defacing, or treating contemptuously the flag of the United 
States. The phrase ``treats contemptuously''--by word or act--
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 (emphasis added). The Court then quoted the 
Federal statute, as a flag protection 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 
    In other words, legislation under the flag amendment is 
subject to the void-for-vagueness doctrine. But that doctrine 
allows Congress 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 on. Given the 
approved 1968 flag protection statute and the even more narrow 
1989 statute, Congress should have little difficulty in 
avoiding a vagueness defect when drafting implementing 
                   parade of horribles is an illusion
    As to the parade of horribles that opponents invoke in 
opposition to the amendment, there is a straightforward answer. 
Reliance on the parade of horribles to oppose the amendment 
would reflect the Senate's fundamental mistrust of the people 
and of Congress itself, to enact reasonable flag protection 
    First, the argument that passage of S.J. Res. 14 would 
create a ``slipperly slope'' on which a flood of amendments 
would follow has little weight. Article V of the Constitution 
includes supermajority requirements both for Congress to send 
an amendment to the States and for the States to ratify an 
amendment. These supermajority requirements have successfully 
stopped a flood of amendments from leaving Congress for over 
200 years.
    Second, the argument that the proposed amendment would be 
the first amendment to change the Bill of Rights is inaccurate. 
The Bill of Rights has been changed, or amended, in some form 
on several occasions. For example, the 13th amendment amended 
the 5th amendment as interpreted in Dred Scott v. Sandford, 60 
U.S. (19 How.) 393 (1856), to provide that the former slaves 
were not property subject to the due process clause, but free 
men and women.19 The 14th amendment was interpreted 
in Bolling v. Sharpe, 347 U.S. 497 (1954), to have effectively 
amended the due process clause of the 5th amendment to apply 
equal protection principles to the Federal Government. 
Moreover, in Engel v. Vitale, 370 U.S. 421 (1962), the Supreme 
Court restricted the first amendment rights of American school 
children by holding that the establishment clause precluded 
prayer in public schools.
    \19\ In the Dred Scott Case, 60 U.S. at 452, Scott argued, among 
other things, that he should be free because he had traveled to the 
Illinois Territory in which the Missouri Compromise had prohibited 
slavery. Chief Justice Taney premised his opinion, holding that Scott 
was still a slave, on three grounds: First, that the Supreme Court of 
Missouri had held, in a prior parallel State action, that Scott was 
still a slave. Id. at 427. Second, that the lower Federal courts had no 
jurisdiction over the Federal action brought by Scott because he was a 
slave and not a citizen. Id. at 427. Third, that the Federal statute 
providing the Missouri Compromise was unconstitutional under the fifth 
amendment's due process clause because the statute deprived slave 
holders of their ``property'' (i.e., slaves) when they took property 
into the free Illinois Territory. Id. at 450. This widely- recognized 
substantive due process ruling, see, e.g., John E. Nowak & Ronald D. 
Rotunda, Constitutional Law 356 (4th ed. 1991) (``The [Dred Scott] 
decision, at a minimum, shows a pre-war willingness * * * to adopt 
substantive due process * * * .''); ``The Oxford Companion to the 
Supreme Court of the United States,'' 759 (Kermit L. Hall ed., 1992) 
(``Scott v. Sandford, * * * provided a basis for far-reaching 
interpretations of substantive due process * * *.''), unlike a limited 
procedural due process ruling, dealt with both the underlying State 
property right and the Federal substantive protections of that right. 
Scott, 60 U.S. at 451-52 (``[T]he right of property in a slave is 
distinctly and expressly affirmed in the Constitution.''). Chief 
Justice Taney based his expansive substantive due process holding on 
the provisions of the Constitution requiring the return of fugitive 
slaves, article IV, Sec. 2, and allowing the importation of slaves, 
article I, Sec. 9. Id. By removing the effect of these provisions, the 
13th amendment undercut the foundations of the substantive due process 
ruling of the Dred Scott Case, thus changing, or amending, the existing 
interpretation of the due process clause of the 5th amendment--the Bill 
of Rights.
    Each of these constitutional changes substantially modified 
the rights and correlative duties of affected parties from 
those originally envisioned by the Framers of the Bill of 
Rights. Given the long legal tradition of accepting regulation 
of physically destructive conduct toward the flag, however, the 
proposed amendment would effect a much smaller change. It would 
not change the first amendment as originally ratified, but 
would simply displace a few recent judicial misinterpretations 
by restoring the historic balance between society's interests 
in protecting the flag and the actor's interest in choosing a 
destructive means of communicating a message. The proposed 
amendment would, of course, retain the full existing 
protections for oral and written speech against or in a favor 
of the flag, or any other topic.
    Third, the proposed amendment would not automatically 
supersede all other 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 1st 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 speech.
    As further indication of the lack of merit to 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 protection amendment in that it 
says, without more, that a legislative body, ``shall have 
power'' to do something. Do the critics of S.J. Res. 14 doubt 
the applicability of the fourth (no unreasonable search and 
seizure) and eighth amendments (no excessive bails or fines nor 
cruel and unusual punishments) to legislation enacted under the 
income tax amendment? The Committee assumes not.
    Fourth, the proposed amendment is not intended to--and 
would not--discriminate against specific messages or points of 
view, and is thus ``content neutral'' to that extent. 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.
    In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the 
Supreme Court struck down a city ordinance that punished 
certain bias-motivated conduct, noting that the ordinance: (1) 
regulated ideas conveyed by the conduct; and (2) discriminated 
against certain points of view. The Court stated that by 
regulating disparaging conduct toward race, but not toward 
political affiliation, the ordinance effected a content-based 
regulation on speech as to certain subjects, but not as to 
others. Id. at 391. The Court further stated that by regulating 
antireligious conduct, but not proreligious conduct, the 
ordinancediscriminated against particular points of view as to 
the same subject. Id.
    To the extent R.A.V. is interpreted narrowly to proscribe 
discrimination against particular points of view, the proposed 
amendment would not supersede the opinion. For example, under 
the proposed amendment, it would be unconstitutional to punish 
only those flag desecrations that were intended to convey 
antireligious messages, but not those flag desecrations that 
were intended to convey proreligious messages. However, to the 
extent R.A.V. is interpreted broadly to discriminate against 
conduct when it conveys any possible message on one subject--
the flag--, but not on others, the proposed amendment would 
supersede the opinion with respect to the narrow subject of the 
flag. For example, under the proposed amendment, it would once 
again be permissible to punish any flag destruction, specified 
in the implementing legislation, that exhibited a message 
implicating, positively or negatively, the same broad subject 
encompassing national sovereignty, national unity, and the 
history of the American people.
    Finally, the narrowly tailored 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 or flying it at half mast on days other than on 
officially designated occasions.

                      SANCTION OF FLAG DESECRATION

    Opponents of this resolution assert that because there are 
not widespread and continuous flag desecrations, there is no 
need for a constitutional amendment to prohibit flag 
desecration. Although the Committee received evidence of 
between 40 and several hundred acts of flag desecration have 
taken place over the past decade, the Committee does not 
believe there is some threshold of flag desecrations during a 
specified time period necessary before triggering congressional 
action.20 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. For it is not the act of 
desecration which does the most harm to the love of America 
that the flag inspires, but the Government's sanction of such 
desecration. Whether a flag that covered a hero's casket is 
ripped and stuffed in a toilet, stolen from a veteran's grave, 
or burnt by a disrespectful individual, it is the Government's 
protection of such conduct toward the flag that the Government 
is responsible for protecting that harms our country the 
most.21 The proposed amendment would allow Congress 
to remove the imprimatur of legitimacy from the destruction of 
the very love of country that Congress itself is responsible 
for preserving.
    \20\ The Citizens Flag Alliance submitted to the Committee a list 
of 74 reports of flag desecrations since 1994. The news articles from 
which the reports were taken, show that several reports dealt with 
multiple flag desecrations. For example, in just the last 2 years 
before the Committee's April 20, 1999, hearing: The Hartford Courant, 
on June 12, 1998, reported the desecration of 150 flags on veterans' 
graves at a cemetery in Connecticut; The Harrisburg Patriot, on August 
20, 1998, reported the desecration of 100 flags on veterans' graves at 
cemeteries near Minersville, Pennsylvania; the Courier-Post, on May 18, 
1997, reported the desecration of ``dozens of American flags'' that had 
draped the caskets of veterans at a cemetery near Beverly, NJ; the 
Associated Press, on July 3, 1998, reported that 14 flags had been 
desecrated (some by stuffing them into toilets) in Somers, CT; and the 
Associated Press, on November 29, 1997, reported the desecration of 
``many'' flags in Appleton, WI.
    \21\ Moreover, that a certain course of conduct might also be 
prosecutable as desecration and as another crime (e.g., theft, 
vandalism), does not indicate that society's interest in protecting the 
flag need not be protected in its own right. The argument that unlike 
the societal interest in preserving private property, the distinct 
societal interest in preserving the symbol of our Nation's integrity 
cannot be protected because the people ratified the first amendment to 
proscribe such protection is false. Under the traditional balancing 
approach, society's interest in protecting the physical integrity of 
the flag is consistent with allowing full freedom of oral and written 
speech while protecting the preeminent symbol of the sovereignty of our 
Nation, or our oneness as a people, and of the price we have paid for 
    By removing the court-imposed governmental protection of 
destructions of the symbol that the Government is responsible 
for preserving, the proposed amendmentwould restore the 
traditional balance of society's interest in protecting the flag and 
the actor's interest in choosing a means to convey his message. This 
traditional balance, which continues to be respected for numerous other 
societal interests that affect the first amendment, would allow 
Congress to protect the physical integrity of the American flag while 
fully upholding the existing constitutional protections for oral and 
written speech in dissent from or in support of the flag, or any other 
topic. Our statesmen, our legislatures, and, until recently, our courts 
have long respected society's interest in protecting the flag, and 49 
State legislatures and most of the American people want a 
constitutional amendment to protect the physical integrity of the flag. 
It is the Committee's considered judgment that S.J. Res. 14 is the 
appropriate means to maintain the protection for oral and written 
speech, while restoring balanced protection for our sovereignty, our 
heritage, and our values that are uniquely represented by the American 

                       IV. Vote of the Committee

    On April 29, 1999, with a quorum present, by rollcall vote, 
the Committee on the Judiciary voted on a motion to report 
favorably S.J. Res. 14. 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
Kyl                                 Feingold
DeWine                              Torricelli
Ashcroft                            Schumer

                        V. Text of S.J. Res. 14

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

                              ``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 agencies 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. 14 would 
        not affect direct spending or receipts, pay-as-you-go 
        procedures would not apply.

(Congressional Budget Office, ``Cost Estimate, S.J. Res. 14,'' 
letter dated Apr. 30, 1999).

                    VII. Regulatory Impact Statement

    Pursuant to paragraph 11(b), rule XXVI of the Standing 
Rules of the Senate, the Committee, after due consideration, 
concludes that Senate Joint Resolution 14 will not have direct 
regulatory impact.

                          VIII. MINORITY VIEWS


    A. Introduction: To Honor our Veterans and Our Nation's 
History, We Must Protect the Constitution
    B. There Is No ``Great and Extraordinary Occasion'' 
Justifying the Proposed Amendment
          1. The Constitution should be amended only under very 
        compelling circumstances
          2. There is no epidemic of flag burnings crippling 
        the country
          3. Outlawing flag desecration could increase rather 
        than decrease such conduct
          4. Existing legal and social sanctions are adequate 
        to deter and punish flag desecration
          5. Existing constitutional limitations on free 
        expression are applicable to acts of flag desecration
    C. The Proposed Amendment Would Diminish the Rights We 
Currently Enjoy Under the First Amendment
          1. The proposed amendment would restrict free 
          2. The first amendment protects above all the right 
        to speak the unpopular and objectionable
          3. The American people can and do answer unpopular 
        speech with tolerance, creativity and strength
          4. The proposed amendment would set a dangerous 
        precedent for future amendments to the bill of rights
    D. The Johnson Decision Was Consistent With Generations of 
Constitutional Doctrine
          1. The Supreme Court has never accepted limitations 
        on the first amendment for peaceful protests involving 
        flag burning
          2. The Supreme Court protected unpopular speech 
        connected to the flag long before Johnson
    E. The Proposed Amendment Is Vague and Its Effect on Civil 
Liberties Uncertain
          1. There is no consensus or clarity on the definition 
        of ``flag''
          2. There is no consensus or clarity on the definition 
        of ``desecration''
          3. Use of the word ``desecration'' in S.J. Res. 14 
        undermines the first amendment religion clauses
          4. There is no consensus or clarity on the issue of 
          5. The difficulties that attend a statutory approach 
        to flag burning would remain even after a 
        constitutional amendment
    F. Conclusion

  a. introduction: to honor our veterans and our nation's history, we 
                     must protect the constitution

    Flag burning is a despicable and reprehensible act. The 
issue before us, however, is not whether we agree with that 
truism--we do. Instead, the issue is whether we should amend 
the Constitution of the United States, with all the risks that 
entails, and narrow the precious freedoms ensured by the First 
Amendment for the first time in our history, so that the 
Federal government can prosecute the tiny handful of Americans 
who show contempt for the flag. We submit that such a 
monumental step is unwarranted and unwise.
    The majority report relies heavily on the views of 
distinguished American veterans and war heroes who have 
expressed to this Committee their love of the flag and support 
for the amendment. Those who fought and sacrificed for our 
country deserve our respect. They know the costs as well as the 
joys of freedom and democracy. But while the majority would 
like to portray the views of veterans as monolithic, many 
outstanding veterans oppose the amendment. They do so for a 
number of reasons.
    Above all, they believe they fought for the freedoms and 
principles that make this country great, not just the symbols 
of those freedoms. To weaken the nation's freedoms in order to 
protect a particular symbol would trivialize and minimize their 
    Former Senator John Glenn, who served this nation with 
special distinction in war and in peace, as well as in the far 
reaches of space, told the Committee:

          [I]t would be a hollow victory indeed if we preserved 
        the symbol of our freedoms by chipping away at those 
        fundamental freedoms themselves. Let the flag fully 
        represent all the freedoms spelled out in the Bill of 
        Rights, not a partial, watered-down version that has 
        altered its protections.
          The flag is the nation's most powerful and emotional 
        symbol. It is our most sacred symbol. And it is our 
        most revered symbol. But it is a symbol. It symbolizes 
        the freedoms that we have in this country, but it is 
        not the freedoms themselves. * * *
          Those who have made the ultimate sacrifice, who died 
        following that banner, did not give up their lives for 
        a red, white and blue piece of cloth. They died because 
        they went into harm's way, representing this country 
        and because of their allegiance to the values, the 
        rights and principles represented by that flag and to 
        the Republic for which it stands.

(Written statement of former Senator John Glenn, April 28, 

    General Colin L. Powell (USA-Ret.), Chairman of the Joint 
Chiefs of Staff during the Persian Gulf War, wrote to Senator 
Leahy on May 18, 1999, in opposition to the proposed flag 
protection amendment:

          We are rightfully outraged when anyone attacks or 
        desecrates our flag. Few Americans do such things and 
        when they do they are subject to the rightful 
        condemnation of their fellow citizens. They may be 
        destroying a piece of cloth, but they do no damage to 
        our system of freedom which tolerates such desecration. 
        * * * I would not amend that great shield of democracy 
        to hammer a few miscreants. The flag will still be 
        flying proudly long after they have slunk away.

    Professor Gary May, who lost both his legs while serving 
his country in Vietnam, eloquently made the same point in his 
testimony before the Committee:

          I am offended when I see the flag burned or treated 
        disrespectfully. As offensive and painful as this is, I 
        still believe that those dissenting voices need to be 
        heard. This country is unique and special because the 
        minority, the unpopular, the dissenters and the 
        downtrodden, also have a voice and are allowed to be 
        heard in whatever way they choose to express themselves 
        that does not harm others. The freedom of expression, 
        even when it hurts, is the truest test of our 
        dedication to the belief that we have that right. * * *
          Freedom is what makes the United States of America 
        strong and great, and freedom, including the right to 
        dissent, is what has kept our democracy going for more 
        than 200 years. And it is freedom that will continue to 
        keep it strong for my children and the children of all 
        the people like my father, late father in law, 
        grandfather, brother, me, and others like us who served 
        honorably and proudly for freedom.
         The pride and honor we feel is not in the flag per se. 
        It's in the principles that it stands for and the 
        people who have defended them. My pride and admiration 
        is in our country, its people and its fundamental 
        principles. I am grateful for the many heroes of our 
        country--and especially those in my family. All the 
        sacrifices of those who went before me would be for 
        naught, if an amendment were added to the Constitution 
        that cut back on our First Amendment rights for the 
        first time in the history of our great nation.
         I love this country, its people and what it stands 
        for. The last thing I want to give the future 
        generations are fewer rights than I was privileged to 
        have. My family and I served and fought for others to 
        have such freedoms and I am opposed to any actions 
        which would restrict my children and their children 
        from having the same freedoms I enjoy.

(Written statement of Professor Gary May, April 20, 1999.) 

    \1\ Professor May, who has worked as a social worker in Veterans 
Administration hospitals and outpatient clinics, also reminded the 
Committee of America's broken promises to those who have served this 
country in uniform: ``If we are truly serious about honoring the 
sacrifices of our military veterans, our efforts and attention would be 
better spent in understanding the full impact of military service and 
extending services to the survivors and their families.'' (Written 
Statement of Professor Gary May, April 20, 1999). Answering a follow-up 
written question from Senator Leahy, Professor May elaborated:

        Veterans and their families need services and 
      opportunities, not symbolism. Recruitment for military 
      service is predicated in part on a quid pro quo--if 
      honorable service is rendered, then meaningful post service 
      benefits will follow. Our record of making good on this 
      contract is not good. The favorable expressed sentiment for 
      veterans by supporters of the flag desecration amendment 
      would be better placed in support of extending and 
      stabilizing services responsive to the day-to-day needs of 
      ordinary veterans and their families.

    Similarly, Major General Patrick Brady responded to Senator Leahy 
that ``the most pressing issues facing our veterans'' were ``broken 
promises, especially health care.''
    We agree with Professor May and General Brady that it is time to 
honor our veterans with substance not symbolism. If the amount of time, 
effort, and money devoted to this amendment in the Senate and by 
outside organizations had been directed toward improving services for 
veterans, they would be much better off.

    Keith Kreul, an Army veteran and former National Commander 
of the American Legion, expressed a similar opinion in a 
statement he submitted to the Committee for its hearing last 
year. He disputes the majority's view that the proposed 
amendment honors the flag:

          American veterans who have protected our banner in 
        battle have not done so to protect a ``golden calf.'' 
        Instead, they carried the banner forward with reverence 
        for what it represents--our beliefs and freedom for 
        all. Therein lies the beauty of the flag.

(Written statement of Keith Kreul, April 20, 1999).

    Another veteran who expressed a similar view was Marvin 
Virgil Stenhammar, veteran of Beirut, Panama, and the Persian 
Gulf, who is permanently disabled as a result of his 15 years 
of service. Mr. Stenhammar testified before this Committee as 

          I feel that our flag, Old Glory, stands for freedom, 
        justice and liberty. It also symbolizes the blood 
        spilled by American service men and women who have 
        given so much to protect it. Many of my colleagues and 
        friends have died, were injured in training or wounded 
        in action for it. They were really not wounded for it, 
        the flag, but rather for it, liberty, and what the flag 
        really stands for.

(Proposing an Amendment to the Constitution Authorizing 
Congress to Prohibit the Physical Desecration of the Flag: 
Hearing on S.J. Res. 40 Before the Senate Comm. on the 
Judiciary, 105th Cong., 2d Sess. (July 8, 1998) (hereinafter 
``Hearing of July 8, 1998''), at 28.)

    The majority report states (in Part III.E.2.a) that 
adoption of the amendment will be ``a step toward 
reestablishing the values that made this country great.'' Many 
veterans object to this attempt to, in effect, legislate 
patriotism. Those who testified before the Committee spoke in 
eloquent terms about the importance of respect and love for 
country coming from within a citizen or a soldier, not being 
imposed from without by the government.
    Senator Bob Kerrey, the only recipient of the Congressional 
Medal of Honor currently serving in the United States Congress, 
stated this view succinctly when he testified: ``Real 
patriotism cannot be coerced. It must be a voluntary, 
unselfish, brave act to sacrifice for others.'' (Written 
statement of Senator Bob Kerrey, April 28, 1999.)
    These sentiments were echoed by Keith Kreul: ``A patriot 
cannot be created by legislation. Patriotism must be nurtured 
in the family and educational process. It must come from the 
heartfelt emotion of true beliefs, credos and tenets.'' 
(Written statement of Keith Kreul, April 20, 1999.)
    Similarly, the late John Chafee, a distinguished member of 
this body and a highly decorated veteran of World War II and 
Korea, pointed out that just as forced patriotism is far less 
significant than voluntary patriotism, a symbol of that 
patriotism that is protected by law will be not more, but less 
worthy of respect and love: ``We cannot mandate respect and 
pride in the flag. In fact, in my view taking steps to require 
citizens to respect the flag, sullies its significance and 
symbolism.'' (Written statement of Senator John Chafee, April 
28, 1999.)
    John Glenn reminded us that our men and women in the armed 
services put themselves in danger because of their devotion to 
the principles of this country. He added: ``Without a doubt, 
the most important of those values, rights and principles is 
individual liberty: The liberty to worship, to think, to 
express ourselves freely, openly and completely, no matter how 
out of step those views may be with the opinions of the 
majority.'' (Written statement of former Senator John Glenn, 
April 28, 1999.)
    This is a radical suggestion--that our country's soldiers 
fight to protect the rights of the minority to do or say things 
that displease or even offend us. But America was founded on 
just such radical ideas. Senator Kerrey reminded us that in 
this country we believe that ``it is the right to speak the 
unpopular and objectionable that needs the most protecting by 
our government.'' Speaking specifically of the act of flag 
burning, he added: ``Patriotism calls upon us to be brave 
enough to endure and withstand such an act--to tolerate the 
intolerable.'' (Written statement of Senator Bob Kerrey, April 
28, 1999.)
    James Warner, a decorated Marine flyer who was a prisoner 
of the North Vietnamese from 1967 to 1973, made this point in 
graphic terms:

          I remember one interrogation where I was shown a 
        photograph of some Americans protesting the war by 
        burning a flag . ``There,'' the officer said. ``People 
        in your country protest against your cause. That proves 
        that you are wrong.''
          ``No.'' I said, ``that proves that I am right. In my 
        country we are not afraid of freedom, even if it means 
        that people disagree with us.'' The officer was on his 
        feet in an instant, his face purple with rage. He 
        smashed his fist onto the table and screamed at me to 
        shut up. While he was ranting I was astonished to see 
        pain, compounded by fear, in his eyes. I have never 
        forgotten that look, nor have I forgotten the 
        satisfaction I felt at using his tool, the picture of 
        the burning flag, against him. * * *
          We don't need to amend the Constitution in order to 
        punish those who burn our flag. They burn the flag 
        because they hate America and they are afraid of 
        freedom. What better way to hurt them than with the 
        subversive idea of freedom? * * * Don't be afraid of 
        freedom, it is the best weapon we have.''

(James Warner, ``When They Burned The Flag Back Home,'' The 
Washington Post, p.A25, July 11, 1989.)

    In these dissenting views, we on the Judiciary Committee 
who oppose the constitutional amendment concerning flag 
desecration discuss the basis for our view that the amendment 
is unnecessary and ill-advised. We understand that the 
political pressure for this amendment is strong, but our hope 
is that the Senate will in the end heed the words of our former 
colleague, John Glenn, when he urged us to reject the 

          There is only one way to weaken the fabric of our 
        country, and it is not through a few misguided souls 
        burning our flag. It is by retreating from the 
        principles that the flag stands for. And that will do 
        more damage to the fabric of our nation than 1,000 
        torched flags could ever do. * * * [H]istory and future 
        generations will judge us harshly, as they should, if we 
        permit those who would defile our flag to hoodwink us into 
        also defiling our Constitution.

(Written statement of former Senator John Glenn, April 28, 

                           PROPOSED AMENDMENT

1. The Constitution should be amended only under very compelling 

    James Madison, a great Framer of the Constitution, told 
posterity that constitutional amendments should be limited to 
``certain great and extraordinary occasions.'' It is 
distressing to find his advice so unheeded that there are 
already over 50 proposed amendments pending before the 106th 
Congress, including an amendment to ease the requirements for 
future amendments. But it is reassuring to recall that since 
Madison spoke, although more than 11,000 amendments have been 
offered, only 27 have been adopted, and only 17 since the Bill 
of Rights was ratified over 200 years ago.
    The proposed resolution 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 highest court. 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.2 Significantly, two of these 
amendments, the Fourteenth and Twenty-Sixth, expanded the 
rights of Americans, while two involved the mechanics of 
government. The proposed amendment would be the first amendment 
to the Constitution that would infringe on the rights enjoyed 
by Americans under the Bill of Rights.3
    \2\ Chisholm v. Georgia, 2 U.S. (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, 
60 U.S. (19 How.) 393 (1856), 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.
    \3\ The majority report stretches to find historical mooring for 
its proposal that ``[t]he Bill of Rights has been changed, or amended, 
* * * on several occasions'' (Part III.E.4) by claiming that the 
Thirteenth Amendment, which outlawed slavery, amended the Fifth 
Amendment's Due Process Clause as interpreted in the Dred Scott case. 
Putting aside the gross incongruity of equating the interests of 
slaveholders with the rights of political protesters, the majority's 
point is not strictly correct. The Thirteenth Amendment altered the 
State law property interests protected by the Due Process Clause, but 
did not restrict or otherwise affect the due process right itself. In 
any sense relevant at all here, the Thirteenth Amendment expanded 
freedom rather than restricted it. The incorporation of equal 
protection principles into the Fifth Amendment was similarly expansive 
of individual rights, not restrictive. Finally, the school prayer 
decision cited by the majority demonstrates only that the Bill of 
Rights may be interpreted, not that it has been ``changed, or 
    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 stated:

          All of our freedoms, all of our liberties rest on the 
        First Amendment. It is the granite of democracy. It is 
        our bedrock. Without the right to speak out, all 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 or anybody else. You are stuck. 
        Without the freedom to worship or not, unmolested, 
        there is a gaping void at the very core of our life. * 
        * *
          If some disaster were to sweep away all the monuments 
        of this country, the Republic would survive just as 
        strong as ever. But if some disaster * * * some failure 
        of our souls were to sweep away the ideals of 
        Washington and Jefferson and Lincoln, then not all the 
        stone, not all the marble, not all the flags in the 
        world would restore our greatness. Instead, they would 
        be mocking reminders of what we had lost.

(Transcript of Comm. Markup, June 24, 1998, at 34-35).

    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.

Federalist No. 49 also warns against using the amendment 
process when ``[t]he passions [and] not the reason, of the 
public, would sit in judgment.''
    The horror with which the Framers might regard the more 
than 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 elected representatives in adopting 
only 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. 
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. The proposed amendment would 
be the first amendment ever passed to vindicate purely symbolic 
    Rather than face the solemn responsibility of justifying an 
amendment to the Constitution, proponents of S.J. Res. 14 have 
suggested that Members of the Senate abdicate their 
responsibility to exercise their judgment and simply forward 
the amendment to the State legislatures for them to make the 
final decision. 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 independently exercise its responsibilities with the 
utmost care. The purpose of the painstaking and difficult 
process of amending the Constitution is to be conservative, 
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--allowing themselves to be led 
by ``[t]he passions [and] not the reason, of the public''--
amendments will start coming quickly, easily, 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 any event, the proponents' 
suggestion is an abdication of responsibility of our clear, 
established responsibility on this occasion--and that is 

2. There is no epidemic of flag burnings crippling the country

    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.
    According to Professor Robert Justin Goldstein, who has 
written several books on the flag desecration controversy, 
there have been only about 200 reported incidents of flag 
burning in the entire history of the country. That is less than 
one per year. (The Tradition and Importance of Protecting the 
Flag: Hearing on S.J. Res. 40 Before the Subcomm. on the 
Constitution, Federalism, and Property Rights of the Senate 
Comm. on the Judiciary, 105th Cong., 2d Sess. (March 25, 1998) 
(hereinafter ``Hearing of March 25, 1998''), at 36.)
    The Congressional Research Service (``CRS'') uncovered only 
43 flag incidents of whatever kind between January 1995 and 
January 1999, many of which could already be addressed under 
existing laws. Even the leading lobbying group in support of 
S.J. Res. 14, the Citizens' Flag Alliance (``CFA''), could 
document only 74 incidents of flag ``desecration'' between 
March 1994 and January 1999, and again, most of those incidents 
were punishable even without S.J. Res. 14.4
    \4\ The majority report asserts (in Part III.E.5) that the 
Committee ``received evidence of between 40 and several hundred acts of 
flag desecration [that] have taken place over the past decade'' 
(emphasis added). What the Committee ``received'' was CRS's list of 43 
incidents, CFA's list of 74 incidents, and an unsubstantiated claim 
that there have actually been ``hundreds and hundreds'' of unreported 
incidents. (Transcript of Hearing, April 20, 1999, at 98).
    In light of these figures, the majority report is driven to 
declare (in Part III.E.5) that a flag amendment is appropriate 
``regardless of the number of [flag] desecrations.'' While we 
agree that even one incident of flag burning merits 
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 restrict the liberties of Americans with a narrowing 
amendment to the Bill of Rights.
    The majority report also argues (in Part III.E.5) that ``it 
is not the act of desecration which does the most harm to the 
love of America that the flag inspires, but the government's 
sanction of such desecration'' (emphasis added). But toleration 
does not equate to approval; obviously, the government does not 
support or endorse everything it does not punish. We who oppose 
the flag amendment deplore any act of flag desecration and hold 
the flag in high regard. But we believe that this cherished 
emblem is best honored by preserving the freedoms for which it 
    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. As John Glenn observed, S.J. Res. 14 is ``a 
solution looking for a problem.'' (Written statement of former 
Senator John Glenn, April 28, 1999).
    Senator Glenn's observation finds unintended support from 
some of the principal proponents of S.J. Res. 14. Asked what 
the penalty should be for burning an American flag, CFA 
Chairman Patrick Brady responded:

          I would handle it like a traffic ticket. The 
        individual who received the ticket for burning the flag 
        * * * could pay the fine or he could * * * go to 
        school. * * * I would send them to a class, and I would 
        tell them this is what the flag means to the people of 
        America, this is what it means to veterans, and that 
        would be it.

(Transcript of Hearing, April 29, 1999, at 81-82).5
    \5\ We know of only one country--the Socialist Republic of 
Vietnam--that punishes flag desecration by ``reeducation''.

    Lieutenant General Edward Baca agreed that flag burning 
should be a misdemeanor offense. (Id. at 83). A third pro-
amendment witness, Professor Richard Parker, opined that ``a 
jail term is probably not reasonable.'' (Id. at 89).
    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.'' (Hearing of 
March 25, 1998, at 21). To amend the Constitution in order to 
issue tickets and lectures is to abandon utterly all prudence, 
judgment and degree. In the words of Keith Kreul, past National 
Commander of the American Legion, ``It is a radical approach to 
a near nonexistent dilemma akin to atom bombing a sleeping city 
because a felon may be in the vicinity.'' (Written statement of 
Keith Kreul, April 20, 1999).6
    \6\ The approach is all the more radical given its admitted 
limitations. The majority report acknowledges (in Part III.E.4) that 
the proposed 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.'' Yet these acts may be as offensive, and 
as deserving public censure, as some of the acts of ``physical 
desecration'' that may be covered by the proposed amendment.

3. Outlawing flag desecration could increase rather than decrease such 

    The principal incitement to flag burning appears, from all 
of the evidence, to be the very efforts to make it illegal. 
That is because outlawing flag burning in a highly publicized 
way, or attempting to do so, tends to assure flag burners of 
the very attention they crave, lending national visibility to 
their crackpot causes and offensive behavior.
    According to Professor Goldstein there have been more than 
twice as many flag burning incidents since this became a news 
item in 1989 than in the entire history of the American 
republic. Professor Goldstein has established that the number 
of incidents peaked between June 1989 and June 1990, when the 
first attempts were made to overturn the Johnson ruling by 
constitutional amendment, and that the rate of incidents has 
more than tripled since the revival of the issue in the mid-
1990s. (Hearing of March 25, 1989, at 36).7 These 
facts are undisputed.
    \7\ Even with the increase brought on by the agitation for bans on 
flag burning, of course, the actual number of incidents remains 
exceedingly low. See supra Part VIII.B.2.
    Based on past experience, then, passage of a flag amendment 
would likely lead to an increase in the number of flags-burning 
incidents, as well as an increase in the variety of distasteful 
acts involving the flag which no doubt would be committed to 
test the vague and uncertain boundaries of any new law.
    If we want to stop people from burning the flag, the most 
effective way would be to stop daring them to do it. Passage of 
the proposed amendment--and the ensuing ratification debates--
would do just the opposite.

4. Existing legal and social sanctions are adequate to deter and punish 
        flag desecration

    There is a huge misunderstanding underlying the push for a 
flag protection amendment. As Senator Feingold explained during 
a Committee markup on S.J. Res. 14:

          The American people have been * * * bamboozled into 
        believing that you can walk across the street, grab an 
        American flag off of somebody's building and burn it, 
        and that is protected. That is not the case. 
        (Transcript of Comm. Markup, April 29, 1999, at 26).

    The States and the Federal government can and do prohibit 
and punish most acts of physical destruction of a flag, and 
with more than a citation or a compulsory class on respect. No 
one has the right to steal a flag or to defile a flag belonging 
to another. Burning a flag, even one's own flag, will not 
shield a violent or disorderly protester from arrest. The First 
Amendment protects speech, expressive conduct, peaceful 
demonstration. It is not a sanctuary for thieves, vandals, or 
    Most of the 74 flag ``desecrations'' identified by CFA are 
linked to other behavior that violates existing laws--including 
laws relating to theft, vandalism, destruction of property, 
breach of the peace, and arson--and are therefore punishable 
regardless of any message that the flag desecrator might have 
been trying to send. For example, included among CFA's list of 
74 are the following incidents:
    --April 1, 1997, Buffalo, New York: The starting goalie for 
the Buffalo Bandits, having just won a playoff-clinching game, 
climbed over a fence at the naval park and tore down the 
American flag, breaking the flagpole. Charged with criminal 
trespass and criminal mischief, the man eventually pled guilty 
and paid a fine. (``Bandits goalie pleads guilty in naval park 
case,'' Buffalo News, October 24, 1997.)
    --Spring/summer 1997, Wallingford, Connecticut: Flags 
hanging from downtown homes and porches were set on fire at 
night, endangering residents and damaging property. Several 
teenagers were arrested in connection with these incidents, 
charged with reckless burning, conspiracy to commit reckless 
burning, and criminal attempt to commit reckless burning. 
(``Second teen accused in Wallingford flag burnings,'' The 
Hartford Courant, September 4, 1997.)
    --July 4, 1997, Springfield, Illinois: A man celebrated the 
Fourth of July by cutting the rope on the Federal Building flag 
pole and hauling down the flag. The man was arrested and jailed 
on charges of theft and criminal damage to government property. 
(``One man celebrates by stealing,'' The State Journal-Register 
(Springfield, IL), July 9, 1997.)
    --August 7, 1998, Minersville, Pennsylvania. Two cemeteries 
were vandalized; the vandalism included the burning of American 
flags on veterans' graves. A 19-year old was arrested, along 
with four juveniles, and charged with institutional vandalism, 
criminal mischief, attempted burglary, trespassing, criminal 
conspiracy, and corruption of minors. (``Man jailed in 
vandalism spree,'' The Harrisburg Patriot, August 20, 1998.)
    --September 10, 1998, Boulder, Colorado. A city flag was 
set on fire while atop a very tall flagpole. The Boulder police 
had no doubt they could arrest the arsonist, since ``burning 
someone's else's flag--in this case the city's--is definitely 
against the law.'' (``Flag arsonist sought,'' Denver Post, 
September 11, 1998.)
    No constitutional amendment was needed to protect the 
people of Buffalo, Wallingford, Springfield, Minersville, or 
Boulder. Their State laws performed that function quite well.
    Similarly, no constitutional amendment was necessary to 
punish Gregory Lee Johnson, the defendant in the Supreme 
Court's 1989 case. Johnson accepted stolen private property (a 
flag) and destroyed it by setting it on fire in a busy public 
place. 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; instead, the only criminal offense with which 
Johnson was charged was ``desecration of a venerated object.'' 
The Supreme Court, while holding that Johnson's conviction for 
that offense could not stand, emphasized that its opinion 
``should [not] be taken to suggest that one is free to steal a 
flag so long as one later uses it to communicate an idea.'' 491 
U.S. at 412 n.8.
    Much has been made of a Wisconsin youth, Matthew Janssen, 
then 18, who stole a number of flags and defecated on one, and 
whose conviction for flag desecration under an old, pre-Johnson 
statute, was eventually overturned. See Wisconsin v. Janssen, 
219 Wis.2d 362 (1998). 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 both 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?

Senator Breske responded, ``He probably should have got a 
little more.'' (Hearing of March 25, 1998, at 46). ``A little 
more'' is no reason to amend the Constitution of the United 
    General Colin Powell summarized the point as follows:

          If they are destroying a flag that belongs to someone 
        else, that's a prosecutable crime. If it is a flag they 
        own, I really don't want to amend the Constitution to 
        prosecute someone for foolishly desecrating their own 
        property. We should condemn them and pity them instead.

(Letter from General Colin Powell to Senator Patrick Leahy, May 
18, 1999.)

5. Existing constitutional limitations on free expression are 
        applicable to acts of flag desecration

    The decision of the Supreme Court in Johnson did not give 
carte blanche to protesters to burn flags however, whenever and 
wherever they please, even for expressive purposes. The First 
Amendment leaves ample room for Congress and the States, 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, 447 (1969), and limits also 
can be placed on ``fighting words,'' those likely to provoke 
the average person to whom they are addressed to retaliation. 
Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (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 government's authority 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 remain 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, it will provoke ordinary citizens to 
    Finally, established principles of First Amendment 
jurisprudence 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 may plague legislative drafters if this 
amendment is adopted, however (see infra Part VIII.E), and the 
American people would be far better served if the proponents of 
S.J. Res. 14 addressed this difficult task squarely and 
honestly at the outset by proposing a carefully crafted statute 
rather than toying with the Constitution.
    On April 30, 1999, Senator Mitch McConnell and others 
introduced the Flag Protection Act of 1999, S. 931, to provide 
for the maximum protection against the use of the flag to 
promote violence, while respecting the liberties that it 
symbolizes. The Act would ensure that incidents of deliberately 
confrontational flag burning are punished with stiff fines and 
even jail time. Experts at the Congressional Research Service 
and several constitutional scholars have opined that S. 931 
respects the First Amendment and would be upheld by the courts. 
(See Record, at S4487-S4493.) We believe that Congress should 
consider this statutory alternative, and that the Court should 
address it, before we again take up a constitutional amendment 
on this issue.8
    \8\ Although the Committee held a hearing on the proposed 
constitutional amendment on April 20, 1999, and heard from Senators and 
the Department of Justice about it on April 28, 1999, no attention 
whatever has been paid to Senator McConnell's legislative proposal, nor 
to alternative legislative ideas grounded in intellectual property 

                       UNDER THE FIRST AMENDMENT

1. The proposed amendment would restrict free expression

    The proposed amendment unquestionably would restrict rights 
currently enjoyed by Americans under the First Amendment. 
Indeed, that is its purpose.
    Proponents of the amendment argue that they seek to bar 
flag burning only as ``conduct'' and not as ``speech,'' but 
that would-be distinction is not workable. Expressive conduct 
is speech. Because the flag serves as a symbol, use of the flag 
symbolically is expressive. Indeed, the State of Texas conceded 
this point when arguing the Johnson case before the Supreme 
Court, see 491 U.S. at 405, as did the United States the 
following year, see Eichman, 496 U.S. at 315.
    Professor Goldstein explained the expressive aspect of flag 
desecration in his 1995 book, Saving ``Old Glory'':

          [A]ll forms of communication, including oral and 
        written speech, are ultimately ``symbolic'' (since 
        letters and words have no meaning, by themselves, but 
        only represent other things) and they all involve 
        conduct--opening one's mouth, printing and circulating 
        a book, and so on. Unless flag desecration results in 
        burning down a building or blocking a public street, it 
        is, in practice, just as ``purely'' symbolic and purely 
        expressive as are other forms of communication and 
        therefore deserves equal protection. If the argument 
        that only ``pure'' speech and writing are protected by 
        the principles of constitutional democracy was 
        accepted, then people who use sign language would have 
        no rights, and neither would actors, dancers, 
        musicians, painters, movie producers, or anyone else 
        who communicated in any other way.

(Robert J. Goldstein, Saving ``Old Glory'': The History of the 
American Flag Desecration Controversy xii-xiii (1995).)

    As Professor Goldstein notes, the conduct/expression 
distinction is meaningful under the First Amendment only in the 
sense that the behavior in question can cause harm to real 
interests that the government can protect. For instance, 
burning a flag causes harm to the owner's property interest in 
that flag: people label that which causes this real, tangible 
harm as the ``conduct'' element in the behavior. It is 
precisely such 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--quite the contrary. To the extent that 
desecration is ``conduct,'' it can already be regulated. The 
whole point of the amendment is to regulate ``expression'' (or, 
the ``expressive'' element in the behavior) when it does not 
cause real, tangible harm, but is only offensive. Invoking 
illusory distinctions like conduct-versus-expression does not 
change that reality.

2. The first amendment protects above all the right to speak the 
        unpopular and objectionable

    Ultimately, the debate over S.J. Res. 14 and the earlier 
attempts to amend the Constitution to ban flag desecration 
turns on the scope we think proper to give to speech which 
deeply offends us. As one Senate sponsor candidly remarked, 
``This isn't about whether or not we can limit freedom under 
the First Amendment, free speech. It is about what free speech 
we want to limit.'' (Transcript of Hearing, April 20, 1999, at 
    For Congress to limit expression because of its offensive 
content is to strike at the heart of the First Amendment. ``If 
there is a bedrock principle underlying the First Amendment, it 
is that thegovernment may not prohibit the expression of an 
idea simply because society finds the idea itself offensive or 
disagreeable.'' Johnson, 491 U.S. at 414. Indeed, it is the right to 
speak the offensive and disagreeable that needs the most protecting. 
Justice Holmes wrote that the most imperative principle of our 
Constitution was that it protects not just freedom for the thought and 
expression we agree with, but ``freedom for the thought that we hate.'' 
United States v. Schwimmer, 279 U.S. 644, 654 (1929). ``[W]e should be 
eternally vigilant,'' he taught us, ``against attempts to check the 
expression of opinions that we loathe * * * ``Abrams v. United States, 
250 U.S. 616, 630 (1919). Justice Robert Jackson echoed this thought in 
West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), 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 test of its substance is the right to 
        differ as to things that touch the heart of the 
        existing order.

    One opponent of the amendment, conservative scholar Bruce 
Fein, cited President Thomas Jefferson's first inaugural 
address, when the nation was bitterly divided. That giant among 
the Founders 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 
that undergirds the First Amendment, Voltaire's famous 
statement, ``I disapprove of what you say, but I will defend to 
death your right to say it.'' (See Hearing of March 25, 1998, 
at 21).
    John Glenn stated the argument in more colloquial terms:

          To say that we should restrict speech or expression 
        that would outrage a majority of listeners or move them 
        to violence is to say that we will tolerate only those 
        kinds of expression that the majority agrees with, or 
        at least does not disagree with too much. That would do 
        nothing less than gut the First Amendment.

(Written statement of former Senator John Glenn, April 28, 

    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 free speech 
philosopher Alexander Meiklejohn cautioned, ``To be afraid of 
ideas, any ideas, is to be unfit for self-government.'' 
(Alexander Meiklejohn, Freedom of Speech and Its Relation to 
Self-Government 27 (1948).)
    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 the truth put to the worse in a free and open 

(John Milton, Areopagitica, A Speech for the Liberty of 
Unlicensed Printing to the Parliament of England (1644).)

3. 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. Justice Louis Brandeis observed, ``Those who won our 
independence * * * eschewed silence coerced by law--the 
argument of force in its worst form.'' Whitney v. California, 
274 U.S. 357, 375-376 (1927) (Brandeis, J., concurring).
    The American people respond with strength. The majority 
report (in Part III.E.2) contends that requiring respect for 
the flag will ``enhanc[e] national unity'' and ``help[] to 
preserve freedom and democratic government.'' The rare 
occasions of flag desecration have not, and cannot, subvert our 
sense of unity. Our institutions are not threatened by the 
exercise of First Amendment freedoms.
    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 
resentment, disrespect and disunity. As Justice Jackson wrote 
in Barnette, 319 U.S. at 640-642.:

          Struggles to coerce uniformity of sentiment in 
        support of some end thought essential to their time and 
        country have been waged by many good as well as by evil 
        men.* * * Those who begin coercive elimination of 
        dissent soon find themselves exterminating dissenters. 
        Compulsory unification of opinion achieves only the 
        unanimity of the graveyard. * * *
          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 

    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 
thatwill justify respect and allegiance, freely given. Justice 
Brennan wrote in Johnson, ``We can imagine no more appropriate response 
to burning a flag than waving one's own.'' 491 U.S. at 420. That is 
exactly how the American people respond.
    Justice Brennan described the aftermath of Gregory Lee 
Johnson's contemptible act in 1984, when he burned a flag at a 
political demonstration in Dallas, Texas, in front of City 
Hall. ``After the demonstrators dispersed, a witness to the 
flag burning collected the flag's remains and buried them in 
his backyard.'' Id. at 399. 9
    \9\ We are pleased to identify and give full credit to Korean War 
veteran Daniel Walker for this quietly gallant act. See Robert J. 
Goldstein, Burning the Flag: The Great 1989-1990 American Flag 
Desecration Controversy 33 (1996).
    Senator Feingold has pointed to the example of Appleton, 
Wisconsin, where Matthew Janssen committed his particularly 
repugnant act of flag desecration, and where each year, 20,000 
to 30,000 Americans join in the largest Flag Day parade in the 
nation. Senator Durbin has cited the example of the people of 
Springfield, Illinois, who faced the prospect of a Ku Klux Klan 

          For each minute that the Ku Klux 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, the more money is 
        being [raised] in defense of the values of America. I 
        think that is what America is all about. (Transcript of 
        Comm. Markup, June 24, 1998, at 23).

    In June 1998, an African American was brutally tortured and 
murdered in Jasper, Texas, 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 stayed away. Steve Meyer, owner of 
The Bookseller, made it a point to keep his store open, 
observing 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 was given, ironically, by 
a witness testifying in support of the amendment. The incident 
was the center of the testimony of Los Angeles Dodger General 
Manager Tommy Lasorda, the proponents' star witness in the 
105th Congress. 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. The attempt was unsuccessful (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 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.'' (Hearing 
        of July 8, 1998, at 27).

That was an answer on which Congress cannot improve.
    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. Vietnam 
veteran Stan Tiner told the Committee 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 righteous brand.'' 
He concluded:

          [I]n 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 people can 
        speak freely their minds without fear.

(Hearing of March 25, 1998, at 48).

    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'' at a baseball game that wins 
the debate. The First Amendment works.

4. The proposed amendment would set a dangerous precedent for future 
        amendments to the Bill of Rights

    Supporters of S.J. Res. 14 argue that the flag is a special 
case--that its adoption would not open the floodgates to other 
amendments. We are not so sure. Already, scores of 
constitutional amendments are proposed each year, many of which 
would alter the Bill of Rights. Some of these proposed 
amendments command significant support, including support from 
sponsors of the current proposal. Establishing a precedent that 
the First Amendment can be restricted by 
constitutionalamendment would give supporters of other restrictive 
amendments ammunition and momentum, and weaken public respect and 
support for safeguarding the enduring principles in our Bill of Rights.
    Charles Fried, Solicitor General under President Reagan, 
cautioned us in 1990 that it is dangerous to make exceptions in 
matters of principle:

          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) (hereinafter ``Hearing of June 21, 1990''), at 113.)

    Senator Chafee also took a dim view of the consequences of 
S.J. Res. 14 when he asked the Committee, ``What will be 

          Will we next see a constitutional amendment demanding 
        the standing to attention when the national anthem is 
        played? Will there be a list of worthy documents and 
        symbolic objects for which desecration is 
        constitutionally prohibited? Should there be a 
        Constitutional Amendment to protect the Bible? What 
        about other religious symbols such as the crucifix or 
        the Menorah; what about the Constitution, itself? 
        Surely, the Constitution embodies the same significance 
        as the flag!

(Written statement of Senator John Chafee, April 28, 1999.)

    These are not hypothetical concerns; the Texas statute in 
the Johnson case treated the flag as just one of a number of 
``venerated objects.''
    Even if we could draw the line after one restrictive 
amendment, the damage would be done. John Glenn testified, that 
``The Bill of Rights * * * is what has made [the United States] 
a shining beacon of hope, liberty of inspiration to oppressed 
peoples around the world for over 200 years. In short, it is 
what makes America, America.'' (Written statement of former 
Senator John Glenn, April 28, 1999). The proposed amendment 
would dim that beacon, as Senator Leahy described:

          We are being asked to say that it is okay for the 
        United States government to suppress at least some 
        political expression merely because we find it 
        offensive. And when governments like that of Cuba or 
        China decide that certain forms of political expression 
        are offensive and should be prohibited, when they 
        prosecute their pro-democracy dissidents or jail 
        journalists who criticize their leaders, what will we 
        say then? If it is okay for the United States to 
        criminalize an unpopular form of political expression 
        why should other countries not do the same with respect 
        to expression they find offensive?
          The United States is the most powerful country in the 
        world in large measure because it is the most free. We 
        are a world leader in the struggle for human rights, 
        including the right to freedom of speech for all. This 
        administration and past administrations, Democrat and 
        Republican, have strongly criticized foreign 
        governments that limit free speech, censor the press 
        and suppress other fundamental human rights. If we 
        succumb to the temptation of silencing those who 
        express themselves in ways that we find repugnant, what 
        example do we set for others around the world?

(Written statement of Senator Patrick Leahy, April 20, 1999.)

    The First Amendment boldly proclaims that ``Congress shall 
make no law * * * abridging the freedom of speech.'' The 
proposed amendment would turn the ``no'' into an ``almost 
no''--a singular erosion of the principle for which the First 
Amendment stands. Perhaps that is why the vast majority of 
Americans do not support the proposed constitutional amendment 
once they know of its unprecedented impact on the First 
    \10\ While the sponsors of S.J. Res. 14 purport to be responding to 
``the continuing groundswell of support by the American people for 
constitutional protection of their flag'' (Part II), recent polling 
data on this issue is mixed. One 1999 poll showed Americans to be about 
evenly divided when asked whether the Constitution should or should not 
be amended to prohibit burning or desecrating the American flag, with 
51 percent answering ``should,'' and 48 percent answering ``should 
not.'' According to the same poll, 90 percent of those answering 
``should'' reconsidered their answer and said that the Constitution 
should not be amended when informed that, if the amendment were 
approved, it would be the first time any of the freedoms in the First 
Amendment had been amended in over 200 years. See State of the First 
Amendment 1999 Questionnaire, .

                        CONSTITUTIONAL DOCTRINE

1. The Supreme Court has never accepted limitations on the first 
        amendment for peaceful protests involving flag desecration

    In beating the drum for the first amendment to the First 
Amendment, the majority report perpetuates another myth that 
has been fueling the flag protection movement since 1989, 
namely, that the Supreme Court's decision in Johnson ``broke 
with legal tradition'' (Part I) and worked ``a dramatic change 
in First Amendment jurisprudence'' (Part III.D). There quite 
simply is no ``legal tradition'' of upholding bans on flag 
desecration against First Amendment challenges--just 
theopposite is true. The strained efforts of the majority to 
manufacture such a tradition underscore just how wrong it is in its 
characterization of American legal history.
            a. Endecott's case
    The majority report begins (in Part III.C.1) with 
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 an 
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.'') 11 It 
is remarkable 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.
    \11\ This same regime presently banished Roger Williams (1635) for 
urging religious liberty, and Anne Hutchinson (1638) and Rev. Roger 
Wheelright (1637) over doctrinal differences. Hawke, The Colonial 
Experience, 143-146, 689 (1966).
    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 
    \12\ The debate over Endecott's case was joined in an earlier 
report on the proposed amendment. S. Rpt. No. 298, 105th Cong., 2d 
Sess. 7, 9 (1998) (majority); id. at 56-57 (minority). While the 
majority revised its views in other respects, it failed to strike or 
justify its bizarre reliance on Endecott's case.
            b. James Madison and Thomas Jefferson
    The next examples cited by the majority report (in Part 
III.C.2.a) are also completely irrelevant to freedom of speech 
and the First Amendment. The majority report cites as part of 
its ``legal tradition'' a characterization by former Judge 
Robert Bork regarding James Madison's opinion that the tearing 
down of the flag of the Spanish minister in Philadelphia in 
1802 was actionable. The characterization is misleading. The 
incident refers, of course, to assaults on property (a Spanish 
flag) within a foreign embassy, and to 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. 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 decision in Johnson. Indeed, destruction of another's 
property, whether a flag or otherwise, remains a crime 
throughout the United States.
    The majority report 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 force it to haul down the colors is a 
``dire invasion of sovereignty.'' The harm comes from firing 
upon a United States military vessel; the treatment of the 
flag, to the extent that it could 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, surely Madison would not have shrugged his shoulders and 
let the matter pass. Again, the example has nothing whatever 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 had no effect on that 
    Equally unrelated is the majority's citation (in Part 
III.C.2.b) of a letter from Thomas Jefferson dealing with the 
use of the U.S. flag by foreign ships to avoid English 
sanctions against trade with France during the 1790s. Jefferson 
was writing to our Consul in 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 has nothing to do with peaceful 
protest, freedom of expression, or the First Amendment. The 
United States can and does still cooperate with other nations 
to limit the use of its flag; Johnson had no effect on that 
    The suggestion that our Founders viewed flag desecration as 
a heinous offense clearly worthy of severe penalties falls flat 
when we notice that the Constitution never mentions either the 
flag or flag desecration, and that neither the Founders nor any 
other Federal legislators saw fit to outlaw flag desecration 
until 1968.
            c. Statutory protection for the flag
    In its search for supportive ``legal tradition,'' the 
majority (in Part III.C.3.b) leaps from 18th century foreign 
policy over a century to the adoption of the first flag 
protection legislation. As Professor Goldstein describes in his 
scholarly history of the flag protection movement, an extensive 
campaign engineered in the late 19th century by various 
veterans groups led to the adoption of flag desecration laws in 
every State, beginning in 1897. While the flag protection 
movement was successful in obtaining passage of the State flag 
protection laws, however, in early cases where those laws were 
challenged, they were overwhelmingly invalidated. See 
Goldstein, Saving ``Old Glory,'' ch. 1.
    Curiously, the majority report cites these early statutes 
and the decisions invalidating them as evidence of a centuries-
old tradition supporting flag protection. In fact, this history 
reveals that efforts to iconize and afford legal protection to 
the flag are quite recent, and that such efforts have always 
been controversial and often unsuccessful.
    The majority report relies heavily on Halter v. Nebraska, 
205 U.S. 34 (1907), in which the Supreme Court upheld a 
Nebraska statute forbidding the use of representations of the 
flag for purposes of advertisement. The citation is far off 
target. The defendants in Halter, who were convicted of using 
the flag as an advertisement on a bottle of beer, challenged 
the Nebraska statute on three grounds: (1) as infringing their 
personal liberty guaranteed by the Fourteenth Amendment; (2) as 
depriving them of privileges impliedly guaranteed by the 
Constitution to citizens of the United States; and (3) as 
unduly discriminating and partial in its character. Id. at 39. 
The defendants did not challenge the statute on free speech 
grounds, nor did the Court give any consideration to First 
Amendment issues. Indeed, Halter was decided nearly 20 years 
before the Supreme Court concluded that the First Amendment 
applied to the States by virtue of the Fourteenth Amendment 
(see Gitlow v. New York, 268 U.S. 652 (1925)), and nearly 70 
years before the Court extended First Amendment protection to 
commercial speech, such as the beer advertisement at issue in 
Halter (see Virginia State Bd. of Pharmacy v. Virginia Citizens 
Consumer Counsel, Inc., 425 U.S. 748 (1976)).
    Similarly inapposite is the majority's remark (in Part 
III.C.3.b) that the Lochner-era courts that struck down early 
State flag protection statutes ``perceived no First Amendment 
problem with the statutes.'' Those courts did not consider the 
First Amendment implications of the statutes--nor could they 
have--since the First Amendment did not, at that time, apply 
against the States.
    The majority report rounds out its historical survey by 
citing three State court cases, all decided shortly after the 
attack on Pearl Harbor, in which flag-related convictions were 
upheld. See Part III.C.3.b (citing State v. Schleuter, 23 A.2d 
249 (N.J. 1941); People v. Picking, 42 N.E.2d 741 (N.Y. 1942); 
Johnson v. State, 163 S.W.2d 153 (Ark. 1942)). In two of those 
cases, Schleuter and Picking, the courts did not deal with the 
constitutional validity of the criminal statutes, as no 
constitutional contentions were advanced.13 Indeed, 
the New Jersey Supreme Court distinguished Schleuter on this 
very ground, when, 32 years later, it struck down New Jersey's 
flag protection statute as unconstitutional. See State v. 
Zimmelman, 301 A.2d 129, 284 (N.J. 1973).
    \13\ Picking, like Halter, involved a commercial use of the flag--
it was painted on the sides of an automobile under four loudspeakers 
and the words ``Travel America''--and the commercial speech doctrine 
did not yet exist.
    The third case, Johnson, did not involve the physical 
desecration of a flag--indeed, the flag at issue was never even 
touched. The defendant in Johnson went to the local Welfare 
Commissary to procure commodities for himself, his wife, and 
his eight children. The head of the Commissary, who testified 
that he was `` `sworn not to give to anyone who wasn't a loyal 
American citizen' '' (163 S.W.2d at 155) asked the defendant to 
salute the flag. The defendant, who had religious objections to 
saluting the flag (id. at 154), refused. According to two 
witnesses, the defendant also exhibited contempt for the flag 
by saying that it meant nothing to him and was only a ``rag''. 
Based on this statement, which the defendant denied having 
made, the Arkansas Supreme Court affirmed the conviction. Id. 
at 154. The case provides no support for S.J. Res. 14, the 
purported purpose of which is to protect the physical integrity 
of the flag, while retaining full protections for oral and 
written speech.14
    \14\ Johnson was decided during the brief period between 
Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940)--in which the 
Supreme Court refused to enjoin enforcement of a compulsory flag salute 
law--and West Virginia Bd. of Educ. v. Barnett, 319 U.S. 624 (1943), 
which overruled Gobitis and enjoined such enforcement. These cases are 
discussed infra, in Part VIII.D.2.
    The majority also cites two Federal cases involving 
convictions under the Federal flag protection statute. In the 
first, involving an art dealer who sold ``constructions'' 
composed in part of U.S. flags, the conviction eventually was 
set aside by a district court applying established principles 
of Supreme Court First Amendment jurisprudence. See United 
States v. Radich, 385 F. Supp. 165 (S.D.N.Y. 1974). The second 
citation is to the Supreme Court's denial of certiorari in Kime 
v. United States, 459 U.S. 949 (1982), which is of no 
precedential value. See Teague v. Lane, 489 U.S. 288, 296 
(1989) (``The `variety of considerations [that] underlie 
denials of the writ,' counsels against according denials of 
certiorari any precedential value.''; citation omitted).
    Disregarded or discounted in the majority report are the 
many decisions that go the other way. During the Vietnam era in 
particular, numerous courts were called upon to determine the 
relationship between statutes prohibiting acts of flag 
desecration and the First Amendment's guarantee of freedom of 
speech. In case after case, courts overturned flag desecration 
convictions on a variety of First Amendment and other grounds, 
rejecting the alleged State interest in protecting the symbolic 
integrity of the flag. See Goldstein, Saving ``Old Glory,'' at 
139-151.15 By 1974, flag desecration laws had been 
struck down as unconstitutional in whole or part in eight 
States. See Goldstein, Saving ``Old Glory,'' at 148.
    \15\ Professor Goldstein discusses, for example, Long Island 
Vietnam Moratorium Comm. v. Cahn, 437 F.2d 344 (2d Cir. 1970) (flag 
emblem with peace symbol superimposed), aff'd, 418 U.S. 907 (1974); 
People v. Keough, 31 N.Y.2d 281 (1972) (photograph of nude draped with 
flag); People v. Vaughan, 183 Colo. 40 (Colo. 1973) (flag patch worn on 

2. The Supreme Court protected unpopular speech connected to the Flag 
        long before Johnson

    Far more significant in the real legal tradition is the 
fact that, in the 75 years that it has applied the First 
Amendment to the States, the Supreme Court has never upheld a 
conviction for anything amounting to flag desecration. Contrary 
to the majority report's claim, the roots of the Johnson 
decision lie deep in American jurisprudence. As former 
Solicitor General Fried testified the year after Johnson was 

          The [Johnson] decision was not some aberration, some 
        momentary quirk of the Justices. Generations of 
        constitutional doctrine led naturally and directly to 
        the Supreme Court's decision in that case. * * * If you 
        want to unravel [our constitutional] jurisprudence so 
        as to keep it from covering flag-burning you would have 
        to unravel decades of doctrine, scores of cases.

(Hearing of June 21, 1990, at 111-112).

    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 young children who, as Jehovah's 
Witnesses, were forbidden by their faith from pledging 
allegiance to the flag, Minersville Sch. Dist. v. Gobitis, 310 
U.S. 586 (1940), the Court quickly reconsidered and removed the 
stain that Gobitis had placed on the First Amendment with its 
decision in West Virginia Bd. of Educ. v. Barnett, 319 U.S. 624 
(1943).16 There, Justice Jackson wrote:

    \16\ The aftermath of the decision in Gobitis offers a sober 
warning to those who think government restrictions on unpopular speech 
strengthen the social fabric and ``unify'' the country:

        [The Gobitis] ruling, along with American entry into the 
      war in December 1941, helped to foster a new wave of 
      expulsions of child [Jehovah's] Witnesses [from public 
      schools] and a large and often extremely violent eruption 
      of harassment, beatings, and arrests of adult Witnesses. 
      The American Civil Liberties Union reported that, between 
      May and October 1940, almost 1,500 Witnesses were the 
      victims of mob violence in 355 communities in 44 states, 
      and that no religious organization had suffered such 
      persecution ``since the days of the Mormons.

      (Goldstein, Saving ``Old Glory,'' at 94.)
          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 

Id. at 641. The Barnett decision, like Stromberg, assured 
protection for expressive conduct (remaining seated during 
class flag salute) as well as written or spoken speech.
    Following the decision in Barnett, 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), Spence v. 
Washington, 408 U.S. 404 (1974) (peace symbol taped to flag), 
and Smith v. Goguen, 415 U.S. 566 (1974) (flag patch on pants 
seat).17 Certainly, each of these convictions was 
overturned with appropriate distaste for the conduct at issue, 
and the decisions were narrowly framed. Nonetheless, by the 
time Johnson was decided, the direction of the law was plain.
    \17\ The majority erroneously asserts (in Part III.D) that the 
Court in Smith ``pointed to the Federal flag protection statute . . . 
as an example of a constitutional flag protection statute.'' In fact, 
the Court simply noted that the Federal statute ``reflects a 
congressional purpose'' to define with specificity what constitutes 
forbidden treatment of United States flags, in order to avoid 
invalidation on grounds of vagueness. 415 U.S. at 581-582 & n.30.
    The proposed amendment would overturn Johnson and its 
successor case, United States v. Eichman, but its effect on 
First Amendment jurisprudence would not end there. If 
effectively implemented, S.J. Res. 14 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 amendment thus would 
overturn decades of consistent interpretation of the First 
Amendment, and certainly would cast a shadow over other flag-
related decisions, such as Barnett. It would also, according to 
the majority report (in Part III.E.3), ``supersede * * * to the 
extent necessary, R.A.V. [v. City of St. Paul, 505 U.S. 377 
(1992)],'' in which the Supreme Court, in an opinion by Justice 
Scalia, reaffirmed the principle, fundamental to the First 
Amendment, that content-based regulations are presumptively 
invalid. See infra Part VIII.E.4. Indeed, the amendment could 
work great mischief in areas far removed from flags and R.A.V.; 
there is the risk that it could be seized on as a basis for 
treating mere offensiveness as an interest that may justify 
government censorship.
    In sum, by excepting certain unpopular speech from First 
Amendment protection, S.J. Res. 14 would have severe 
implications for free speech jurisprudence in general.
 e. the proposed amendment is vague and its effect on civil liberties 
1. There Is No Consensus or Clarity on the Definition of ``Flag''
    The proponents of S.J. Res. 14 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 18 and the 
courts.19 The American people deserve more from 
their Congress, this Congress, before they alter the 
Constitution of the United States.
    \18\ Unlike earlier proposals for a constitutional amendment 
prohibiting flag desecration, S.J. Res. 14 may be implemented by 
Congress only, not by the States. The majority report mentions this 
major language change in a footnote (in Part III.E.3), but does not 
bother either to explain or to justify it.
    \19\ Three times the majority report assures us (in Parts III.E.3 
and III.E.4) that ``[e]xperience justifies confidence'' in our courts, 
to distinguish between legitimate and illegitimate forms of flag-
related expression, and to interpret the terms of a constitutional 
amendment. We are delighted with the majority's expression of 
confidence in our courts, even if made only to avoid accountability and 
deflect charges of vagueness.
    Far from offering any consensus, the proponents of this 
amendment have displayed a striking range of disagreement over 
what they intend 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 our 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 

(Transcript of Comm. Markup, June 24, 1998, at 16-17.)

    The definition of Senator Feinstein would leave 
unrestricted 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? 
What flags are ``able to hang as a representation of our 
    The majority report (in Part III.E.3) equivocates on this 
issue, passing the buck to future Congresses and to the courts, 
while noting one proponent's suggestion that Congress could 
simply adopt the definition contained in the Flag Protection 
Act of 1989. Meanwhile, the 1997 House Report on a proposed 
flag amendment identical to S.J. Res. 14 offered a definition 
directly contrary to Senator Feinstein's interpretation:

          [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. 121, 105th Cong., 1st Sess. (1997), at 8-9.)

    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. 
Sec. 946.05(2). The Uniform Flag Law defined ``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.'' The 1968 Federal 
Flag Desecration Law provided:

          The term ``flag of the United States'' * * * shall 
        include any flag, standard, colors, ensign, or any 
        picture representation of either or of any part or 
        parts of either, made of any substance or represented 
        on any substance, of any size evidently purporting to 
        be either of said flag, standard, colors, or ensign of 
        the United States of America, or a picture or a 
        representation of either, upon which shall be shown the 
        colors, the stars and the stripes, in any number of 
        either thereof, or of any part or parts of either, by 
        which the average person seeing the same without 
        deliberation may believe the same to represent the 
        flag, standard, colors, or ensign of the United States 
        of America.

    The proposed amendment could empower Congress to 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. 20
    \20\  On the other hand, courts could interpret the amendment 
narrowly, permitting Congress to prohibit physical desecration only of 
``the flag of the United States,'' as defined by statute and Executive 
Order, and not of items intended to be perceived as such. In that case, 
the purpose and effectiveness of the amendment could be evaded by 
persons who burned a flag that varied slightly from the official design 
of the U.S. flag or who, upon being charged with flag burning, simply 
claimed that this is what they had done. The ability to raise the 
factual defense that it was not the U.S. flag that was burned but 
simply a piece of cloth that was meant to look like the flag would mean 
that successful prosecutions would depend, as now, on the applicability 
of other laws, including laws against theft, vandalism and public 
    Senator Feingold told the Committee about his own recent 
experience at a Capitol Hill restaurant, where the menu is a 
very large representation of the American flag. He was eating 
his dinner, when a big commotion erupted on the other side of 
the restaurant:

          We turned to see a woman frantically trying to put 
        out a fire that had started when her oversized American 
        flag menu had gotten too close to the small candle on 
        the table. It caught on fire. * * * This thing looks 
        exactly like an American flag, in size, in color, 
        representation. I hope she wasn't arguing about Kosovo 
        because somebody might want somebody to look at it.

(Transcript of Comm. Markup, April 29, 1999, at 25).

    Are we to amend the Constitution and punish people who 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?
    The majority report expresses shock at the idea that 
Congress might be less than wise in formulating any definition 
of the flag. But the wide disagreement among the proponents of 
S.J. Res. 14 shows the compelling need for a clear statement to 
the American people as to what conduct they intend to 
criminalize, if they in fact can create such a definition at 

2. There is no consensus or clarity on the definition of 

    Just as there is no clear definition of ``flag'', the 
definition of ``desecration'' will invite a literally infinite 
catalogue of possible disputes. The Uniform Flag Law, while 
separately banning ``mutilation'' of the flag, defined 
``desecration'' to include:
          (a) Place or cause to be placed any word, figure, 
        mark, picture, design, drawing or advertisement of any 
        nature upon any flag * * *;
          (b) Expose to public 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 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 Law 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's 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?
    Noted television actor John Schneider, who testified in 
1998 for the majority, 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.'' 
(Hearing of July 8, 1998, at 147.)
    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 for allowing 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.'' (Id.)
    Another proponent of the amendment, Professor Richard 
Parker, considered 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. (Id. at 149.)
    Vietnam veteran Stan Tiner observed that the worst crimes 
against the flag are committed by ``well-intentioned or perhaps 
simply thoughtless persons'' who, for example, place hundreds 
of small flags around a city to honor America and the leave 
them to the wind and weather. (Hearing of March 25, 1998, at 
    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 be artistic 
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.
    Testifying before the Committee in opposition to S.J. Res. 
14, Senator John Chafee gave two examples of the amendment's 
hidden pitfalls:

          In my State of Rhode Island, there is a highly-prized 
        work of art at the Rhode Island School of Design. It is 
        a hooked rug, carefully and conscientiously made by 
        patriotic American women some 100 plus years ago, and 
        its design is the American flag. These women made it as 
        a symbol of their national pride; yet it is a rug--
        which by definition is to be walked on! Is that 
        ``desecration?'' Should those patriotic craftswomen 
        have gone to jail?
          The handbook of the Boy Scouts of America, of which 
        more than 34 million copies have been printed since 
        1910, instructs young boys to ``Clean the flag if it 
        becomes soiled. Mend it if it is torn. When worn beyond 
        repair, destroy it in a dignified way, preferably by 
        burning.'' With the passage of this proposal, would we 
        put thousands of patriotic young Scouts in jail?

(Written statement of Senator John Chafee, April 28, 1999.)

    The most powerful example of the vagueness and mischief of 
this amendment came last year from Senator Durbin, who noted 
that many people would consider it desecration to sit on a 
flag. Certainly, each of us can imagine circumstances in which 
such conduct would be an outrage. 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. (Transcript of Comm. Markup, June 24, 1998, at 

3. Use of the word ``desecration'' in S.J. Res. 14 undermines the first 
        amendment religion clauses

    Increasing numbers of religious leaders and people of faith 
are expressing real concern with the proposed constitutional 
amendment. Reverend Nathan Wilson, head of the West Virginia 
Council of Churches, stated the problem quite plainly when he 
testified before the Committee: ``Desecration of an object is 
possible only if the object is recognized as sacred.'' (Written 
statement of Rev. Nathan Wilson, April 20, 1999.) In our 
constitutional system, the government should not be in the 
business of defining for its people what is sacred.
    This is not simply a matter of semantics. It goes right to 
the heart of the significance of the government, under force of 
this amendment, giving an exalted status to an object, even an 
object as important and worthy of respect as the American flag. 
As over 140 religious leaders wrote to the Committee, in a 
letter dated April 29, 1999:

          Although we represent diverse faiths, it is unique to 
        religious traditions to teach what is sacred and what 
        is not. No government should arrogate to itself the 
        right to declare ``holy'' and capable of 
        ``desecration'' that which is not associated with the 
        divine. To do so is to mandate idolatry for people of 
        faith by government fiat. Our First Amendment has 
        guaranteed to people of faith or to those with no faith 
        that the government would not be arbiter of the sacred.

    In light of this criticism, the flag amendment threatens 
not only our freedom of political expression but also our 
freedom of religious expression. In this country, our private 
religious institutions, not the government, determine what is 
sacred. That principle underlies both the Establishment and the 
Free Exercise Clauses of the First Amendment. This amendment 
gives a sacred status to the flag. As much as we love the flag, 
that is not a power that our government was granted by the 
framers of the Constitution, nor should it ever have that 
    Professor Cass Sunstein underlined this point in his 
testimony before the Committee in 1995:

          [The word ``desecration''] intermingles the flag with 
        the divine--an intermingling that is in serious tension 
        with the existing constitutional structure, in 
        particular with the religion clauses. Under our system, 
        the state is not identified with a religion. Under our 
        system, there is no such thing as blasphemy law. At 
        least for purposes of federal law, the nation is not 
        ``sacred.'' ``Desecration'' is therefore an 
        inappropriate word to apply to destruction of the flag.

(Proposing a Constitutional Amendment Authorizing the States 
and Congress to Prohibit the Physical Desecration of the Flag: 
Hearing Before the Subcomm. on the Constitution, Federalism, 
and Property Rights of the Senate Comm. on the Judiciary, 104th 
Cong., 1st Sess. (June 6, 1996), at 70.)

    Another constitutional scholar, Professor Robert Cole, 
echoed this concern in a letter to the Committee dated April 
28, 1999:

          It is no accident that the proposed amendment 
        prohibits ``desecration,'' the core meaning of which is 
        to convert a sacred object to a secular use. But flags 
        are secular objects; they are political emblems to be 
        loved if one chooses but not to be sanctified. It is a 
        dangerous confusion of the political with the sacred to 
        think in terms of sanctifying our national flags, or 
        even subconsciously to do so.

Professor Cole concluded, ``For the sake of religious faith at 
least as much as for the neutrality of government, the sacred 
must be reserved for things having to do with the divine.''

4. There is no consensus or clarity on the issue of content-neutrality

    The Supreme Court has frequently condemned discrimination 
among different users of the same medium for expression. 
``[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.'' Police Dept. of 
Chicago v. Mosley, 408 U.S. 92, 95 (1972).
    Proponents of S.J. Res. 14 have demonstrated an alarming 
ambivalence whether it would permit Congress to restrict flag-
related expression on the basis of its content. This year's 
majority report insists (in Part III.E.4) that the proposed 
amendment ``is not intended to--and would not--discriminate 
against specific messages or points of view.'' A few pages 
earlier, however, the majority report states that S.J. Res. 14 
would ``supersede * * * to the extent necessary'' the Supreme 
Court's 1992 decision in R.A.V. v. City of St. Paul, which held 
that even when the First Amendment permits regulation of an 
entire category of speech or expressive conduct, it does not 
necessarily permit the government to regulate a subcategory of 
the otherwise proscribable speech on the basis of its message. 
Moreover, the majority report in the 105th Congress on exactly 
the same proposed amendment included a full section entitled 
``A `Content Neutral' Constitutional Amendment is Wholly 
Inappropriate,'' specifically attacking the notion, central 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. (See S. Rpt. No. 298, 105th Cong., 
2d Sess. (1998), at 39-42.)
    Senator Leahy asked the majority's principal academic 
witness, Professor Richard Parker, whether Congress could pass 
legislation under S.J. Res. 14 that outlawed only those flag 
burnings intended as a protest against incumbent officeholders. 
Professor Parker replied, ``There is a clear answer there. That 
would be a violation of the First Amendment.'' (Hearing of 
April 20, 1999, at 88). This result obtains, however, if and 
only if the proposed amendment is understood to confer powers 
that are limited by the R.A.V. principle. This, apparently, is 
Professor Parker's understanding; he wrote to the Committee on 
April 27, 1999, in response to a follow-up question by Senator 
Feingold, that ``the R.A.V. rule would not be affected in the 
slightest by ratification of the amendment.'' But if S.J. Res. 
14 ``supersedes'' R.A.V., as the majority report says, then the 
proponents' answer to Senator Leahy's question appears to be 
quite the opposite.
    Senator John Chafee discussed the dangers of content-based 
restrictions in his statement to the Committee. He asked 
whether the amendment's proponents intended ``that when some 
bearded, untidy protestor burns an American flag outside a 
convention hall, he should go to jail--but three blocks away, a 
Boy Scout burns the flag in a dignified manner, he will go 
free?'' If so, he said, then we are getting into ``a messy area 
indeed.'' (Written statement of Senator John Chafee, April 18, 
    We share Senator Chafee's concern that in real life, the 
amendment and its implementing statute would be enforced on the 
basis of content. Police and prosecutors would inevitably 
select for punishment those flag desecrators whom they, or 
their constituents, found insufficiently reverent, patriotic, 
or conformist. Other, more respectable desecrators would likely 
be overlooked--if they were not already frightened into 
    That is, content-neutral legislation prohibiting flag 
desecration would work an additional kind of mischief. Such 
legislation--if it survived vagueness and overbreadth 
challenges (assuming such challenges could be brought) 
21--would inevitably inhibit, silence, or punish a 
great range of expressive behavior, much of which most people 
consider innocent or acceptable. In short, the amendment would 
create havoc for free expression for the purpose of solving no 
real problem.
    \21\ Acting Assistant Attorney General Randolf Moss, who testified 
for the Administration against S.J. Res. 14, noted the ``profound 
difficult[y]'' of identifying just how much constitutional doctrine the 
amendment would supersede. (Written statement of Randolf Moss, April 
28, 1999.) We do not know, for instance, whether the amendment is 
intended, or would be interpreted, to authorize enactments that 
otherwise would violate the due process ``void for vagueness'' 
doctrine, or the First Amendment ``overbreadth'' doctrine.

5. The difficulties that attend a statutory approach to flag burning 
        would remain even after a constitutional amendment

    Proponents of S.J. Res. 14 argue, unconvincingly, that no 
statutory alternative is available to address the issue of flag 
burning. As noted above (in Part III.D.2), one statutory 
alternative has already been proposed in this Congress. Beyond 
that, however, 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.
    As the Supreme Court wrote in Smith v. Goguen, 415 U.S. 
566, 572-573 (1974), discussed in the majority report (in Part 
III.D), the due process doctrine of vagueness incorporates 
notions of fair notice or warning:

          [I]t requires legislatures to set reasonably clear 
        guidelines for law enforcement officials and triers of 
        fact in order to prevent ``arbitrary and discriminatory 
        enforcement.'' Where a statute's literal scope, unaided 
        by a narrowing state court interpretation, is capable 
        of reaching expression sheltered by the First 
        Amendment, the doctrine demands a greater degree of 
        specificity than in other contexts.

    Where vague statutory language permits selective law 
enforcement, there is a denial of due process.
    A statute enforcing this amendment either would be found 
unconstitutional for vagueness or else, as demonstrated above, 
silence or capture as criminals hundreds of well-meaning 
American citizens and businesses whose patriotism is beyond 
question. The majority report indirectly acknowledges as much 
(in Part III.E.3) by 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. But more 
important, 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; there is no suggestion that 
it would enlarge our freedoms. The question, rather, would be 
whether we dare to speak in pursuance of our rights. Vagueness 
is intolerable where it frightens people into silence and 
empowers government to search, seize, hold and punish American 
    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 could be expected 
if this amendment were adopted, and even without the 
inventiveness in mistreatment of the flag and near-flags that 
could be predicted, there would be no end to the litigation 
under any statute. The amendment, the ensuing litigation, and 
the inevitable erratic pattern of results, would demean rather 
than protect the flag.
     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 such efforts to construct an impermeable legal barrier 
to protect it.

                             F. 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.
    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 S.J. Res. 14 not be approved by 
the Senate.

                                   Patrick Leahy.
                                   Ted Kennedy.
                                   Herb Kohl.
                                   Russ Feingold.
                                   Robert G. Torricelli.

                      IX. 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 14.