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109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    109-131

======================================================================


    PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES 
 AUTHORIZING THE CONGRESS TO PROHIBIT THE PHYSICAL DESECRATION OF THE 
                       FLAG OF THE UNITED STATES

                                _______
                                

 June 14, 2005.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                    ADDITIONAL AND DISSENTING VIEWS

                      [To accompany H.J. Res. 10]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the 
joint resolution (H.J. Res. 10) proposing an amendment to the 
Constitution of the United States authorizing the Congress to 
prohibit the physical desecration of the flag of the United 
States, having considered the same, report favorably thereon 
without amendment and recommend that the joint resolution do 
pass.






                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     7
Committee Consideration..........................................     7
Vote of the Committee............................................     7
Committee Oversight Findings.....................................     9
New Budget Authority and Tax Expenditures........................     9
Congressional Budget Office Cost Estimate........................     9
Performance Goals and Objectives.................................    10
Constitutional Authority Statement...............................    10
Section-by-Section Analysis and Discussion.......................    11
Changes in Existing Law Made by the Bill, as Reported............    12
Markup Transcript................................................    12
Additional Views.................................................   100
Dissenting Views.................................................   103

                          Purpose and Summary

    House Joint Resolution 10 proposes to amend the 
Constitution of the United States to empower Congress to 
prohibit the physical desecration of the American flag. The 
proposed resolution states: ``The Congress shall have power to 
prohibit the physical desecration of the flag of the United 
States.'' This proposed amendment, by itself, does not 
effectively prohibit the physical desecration of the flag. 
Rather, H.J. Res. 10 gives Congress the authority to legislate 
in this area and sets the boundaries by which Congress can 
enact legislation, if it so chooses, to prohibit such conduct. 
Congress and the States exercised such power in the past until 
the United States Supreme Court issued a 5-4 decision in Texas 
v. Johnson \1\ in 1989, holding that flag burning is expressive 
conduct that is protected by the First Amendment. Prior to the 
Johnson ruling, 48 states and the Federal Government had 
outlawed such conduct. Today, all 50 states have passed 
resolutions calling on Congress to approve a constitutional 
amendment to protect the flag and to send it to the states for 
ratification. This proposed constitutional amendment has also 
engendered the consistent support of an overwhelming majority 
of the American public for over a decade.\2\ Consistent with 
the wishes of the American public, H.J. Res. 10 will empower 
Congress to prohibit the physical desecration of the American 
flag.
---------------------------------------------------------------------------
    \1\ 491 U.S. 397 (1989).
    \2\ See Public Opinion Poll by Market Strategies, Inc. (Mar. 13, 
2002) at http://www.cfa-inc.org/issues/poll2.htm (finding seventy-five 
percent of Americans support such an amendment).
---------------------------------------------------------------------------

                Background and Need for the Legislation

    The flag of the United States of America is the most 
recognized symbol of freedom and democracy in the world today. 
It serves a unique role as the symbol of our country's values 
and the embodiment of the rights guaranteed to all Americans 
under the Constitution. It has led the way into battle, has 
been planted on the moon, and has draped the coffins of 
Americans who have sacrificed their lives for our country. The 
flag was raised by rescue workers at the World Trade Center and 
unfurled on the Pentagon following the tragic attacks of 
September 11, 2001. The United States flag is more than just a 
piece of cloth--it is a uniquely unifying symbol that 
epitomizes this great Nation and all for which it stands. 
Despite this, since 1994, over 119 incidents involving flag 
desecration were reported in the States, the District of 
Columbia, and Puerto Rico.
    The movement to pass legislation prohibiting the 
desecration of the American flag began in the late 1800's, with 
all of the States having flag desecration laws on the books by 
1932.\3\ In 1968, the Federal Government passed its statute 
prohibiting such conduct.\4\ By 1989, every State in the Union 
except Alaska and Wyoming outlawed such conduct. However, on 
June 21, 1989, the United States Supreme Court proscribed these 
laws in Texas v. Johnson,\5\ holding in a 5-4 decision that the 
burning of an American flag as part of a political 
demonstration was expressive conduct protected by the First 
Amendment to the United States Constitution.
---------------------------------------------------------------------------
    \3\ Desecrating the American Flag: Key Documents of the Controversy 
From the Civil War to 1995 at xix (Robert Justin Goldstein ed., 1996).
    \4\ Pub. L. No. 90-381, 82 Stat. 291 (codified as amended at 18 
U.S.C. Sec. 700 (2003)).
    \5\ 491 U.S. 397 (1989).
---------------------------------------------------------------------------
    In Johnson, Gregory Johnson was convicted of violating a 
Texas law prohibiting the desecration of a ``venerated object'' 
after he publicly burned a stolen American flag in a protest 
outside of the 1984 Republican National Convention in Dallas, 
Texas. The Texas law prohibited the intentional desecration of 
a national flag in a manner in which ``the actor knows will 
seriously offend one or more persons likely to observe or 
discover his action.'' \6\ His conviction was upheld by the 
Court of Appeals for the Fifth District of Texas but reversed 
by the Texas Court of Criminal Appeals. The United States 
Supreme Court subsequently affirmed the holding of the Texas 
Court of Criminal Appeals, finding that the act of burning an 
American flag during a protest rally was expressive conduct 
entitled to protection under the First Amendment.
---------------------------------------------------------------------------
    \6\ Tex. Penal Code Ann. Sec. 42.09 (1989), ``Desecration of 
Venerated Object,'' provided as follows:

    G(a) A person commits an offense if he intentionally or knowingly 
---------------------------------------------------------------------------
desecrates:

        (1) a public monument;

        (2) a place of worship or burial; or

        (3) a state or national flag.

    G(b) For purposes of this section, ``desecrate'' means deface, 
damage, or otherwise physically mistreat in a way that the actor knows 
will seriously offend one or more persons likely to observe or discover 
his action.

    G(c) An offense under this section is a Class A misdemeanor.
    Chief Justice Rehnquist filed a dissenting opinion in which 
Justices O'Connor and White joined.\7\ Chief Justice Rehnquist 
noted the unique history of the American flag:
---------------------------------------------------------------------------
    \7\ Justice Stevens filed a separate dissenting opinion.

        The American flag, then, throughout more than 200 years 
        of our history, has come to be the visible symbol 
        embodying our Nation. It does not represent the views 
        of any particular political party, and it does not 
        represent any particular political philosophy. The flag 
        is not simply another ``idea'' or ``point of view'' 
        competing for recognition in the marketplace of ideas. 
        Millions and millions of Americans regard it with an 
        almost mystical reverence regardless of what sort of 
        social, political, or philosophical beliefs they may 
        have. I cannot agree that the First Amendment 
        invalidates the Act of Congress, and the laws of 48 of 
        the 50 States, which make criminal the public burning 
        of the flag.\8\
---------------------------------------------------------------------------
    \8\ Johnson, 491 U.S. at 429.

Chief Justice Rehnquist also found persuasive the opinions of 
former Chief Justice Earl Warren and former Justices Hugo Black 
and Abe Fortas, which had noted that the states and the Federal 
Government had the power to protect the flag from desecration 
and disgrace.\9\
---------------------------------------------------------------------------
    \9\ In Street v. New York, 394 U.S. 576 (1969), these three 
Justices set forth their views on the government's regulation of acts 
of flag desecration. Former Chief Justice Earl Warren stated, ``I 
believe that the States and the Federal Government do have power to 
protect the flag from acts of desecration and disgrace.'' Id. at 605 
(Warren, C.J., dissenting). In a similar tone, former Justice Hugo 
Black noted in discussing New York's flag burning statute, ``It passes 
my belief that anything in the Federal Constitution bars a State from 
making the deliberate burning of the American flag an offense.'' Id. at 
610 (Black, J., dissenting). Finally, former Justice Abe Fortas 
remarked that ``the States and the Federal Government have the power to 
protect the flag from acts of desecration in public. . . . [T]he flag 
is a special kind of personality. Its use is traditionally and 
universally subject to special rules and regulations. . . .'' Id. at 
615-17 (Fortas, J., dissenting).
---------------------------------------------------------------------------
    In response to the Johnson decision, Congress approved the 
``Flag Protection Act of 1989'' \10\ in September 1989 by a 
vote of a 371-43 in the House and 91-9 in the Senate. The Act 
amended the Federal flag statute, 18 U.S.C. Sec. 700, in an 
attempt to make it ``content-neutral'' so that it would pass 
constitutional muster. As stated in the House Judiciary 
Committee report, ``the amended statute focuses exclusively on 
the conduct of the actor, irrespective of any expressive 
message he or she might be intending to convey.'' \11\
---------------------------------------------------------------------------
    \10\ Pub. L. No. 101-131, 103 Stat. 777.
    \11\ ``Flag Protection Act of 1989'' H. Rep. No. 101-231, 101st 
Cong., 1st Sess. 2 (1989). The Act became law without the President's 
signature on October 28, 1989.
---------------------------------------------------------------------------
    On June 11, 1990, in United States v. Eichman,\12\ the 
United States Supreme Court, in another 5-4 decision, struck 
down the recently-enacted ``Flag Protection Act of 1989,'' 
ruling that the Act infringed on expressive conduct protected 
by the First Amendment. Although the Federal Government 
conceded that flag burning constituted expressive conduct, it 
claimed that flag burning, like obscenity or ``fighting 
words,'' was not fully protected by the First Amendment. The 
Federal Government also argued the Flag Protection Act was 
constitutional because, unlike the Texas statute struck down in 
Johnson, the Act was ``content-neutral'' and simply sought to 
protect the physical integrity of the flag rather than to 
suppress disagreeable communication.
---------------------------------------------------------------------------
    \12\ 496 U.S. 310 (1990).
---------------------------------------------------------------------------
    Justice Brennan, writing for the majority, rejected the 
Federal Government's argument, noting that:

        Although the Flag Protection Act contains no explicit 
        content-based limitation on the scope of prohibited 
        conduct, it is nevertheless clear that the Government's 
        asserted interest is ``related `to the suppression of 
        free expression,' '' 491 U.S., at 410, 109 S.Ct., at 
        2543, and concerned with the content of such 
        expression. . . . [T]he mere destruction or 
        disfigurement of a particular physical manifestation of 
        the symbol, without more, does not diminish or 
        otherwise affect the symbol itself in any way. . . . 
        Rather, the Government's desire to preserve the flag as 
        a symbol for certain national ideals is implicated 
        ``only when a person's treatment of the flag 
        communicates [a] message'' to others that is 
        inconsistent with those ideals.\13\
---------------------------------------------------------------------------
    \13\ Id. at 315-16.

    Justice Stevens wrote a dissenting opinion in which Chief 
Justice Rehnquist, Justice White, and Justice O'Connor joined. 
He expressed agreement with the proposition expressed by the 
majority that ``the Government may not prohibit the expression 
of an idea simply because society finds the idea itself 
offensive or disagreeable.''\14\ He went on, however, to note 
that methods of expression may be prohibited under a number of 
circumstances and set forth the following standard:
---------------------------------------------------------------------------
    \14\ Id. at 319.

        If (a) the prohibition is supported by a legitimate 
        societal interest that is unrelated to suppression of 
        the ideas the speaker desires to express; (b) the 
        prohibition does not entail any interference with the 
        speaker's freedom to express those ideas by other 
        means; and (c) the interest in allowing the speaker 
        complete freedom of choice among alternative methods of 
        expression is less important than the societal interest 
        supporting the prohibition.\15\
---------------------------------------------------------------------------
    \15\ Id.

Justice Stevens believed that the statute at issue in this case 
satisfied each of these concerns and thus should have been held 
constitutional.
    As the Johnson and Eichman decisions illustrate, a 
statutory remedy is not sufficient to correct the problem of 
flag desecration. Therefore, the only avenue remaining by which 
Congress can successfully defend the American flag from acts of 
desecration is through a constitutional amendment. The Framers 
of the Constitution understood that there would be times in our 
nation's history necessitating a change in the Constitution and 
hence provided the people with an amendment process embodied in 
Article V of the Constitution.\16\ While there have been over 
11,000 constitutional amendments proposed since the 
ratification of the Bill of Rights, there have been only 17 
amendments actually approved and ratified to be included in the 
Constitution.\17\ It is this process that is absolutely vital 
to maintaining the democratic legitimacy of the Constitution 
and of judicial review itself.
---------------------------------------------------------------------------
    \16\ See U.S. Const. art. V.
    \17\ See Flag Protection Amendment: Hearing Before the Subcomm. on 
the Constitution of the House Comm. on the Judiciary, 108th Cong. 
(statement of Professor Richard D. Parker, Harvard Law School).
---------------------------------------------------------------------------
    H.J. Res. 10 will effectuate the will of an overwhelming 
majority of the American public in a manner pursuant to the 
mechanisms of Article V of the Constitution and provide 
Congress with the power to prohibit the physical desecration of 
the flag. H.J. Res. 10 simply seeks to remove the physical flag 
as a mode of communication, without regard to the content of 
such speech or the particular viewpoint attempting to be 
expressed. As Justice Stevens noted in Eichman:

        It is, moreover, equally clear that the prohibition 
        does not entail any interference with the speaker's 
        freedom to express his or her ideas by other means. It 
        may well be true that other means of expression may be 
        less effective in drawing attention to those ideas, but 
        that is not itself a sufficient reason for immunizing 
        flag burning. Presumably a gigantic fireworks display 
        or a parade of nude models in a public park might draw 
        even more attention to a controversial message, but 
        such methods of expression are nevertheless subject to 
        regulation.\18\
---------------------------------------------------------------------------
    \18\ Eichman, 496 U.S. at 322.

    Alternative means of expressing ideas are available to 
political protestors who would have otherwise desecrated a flag 
in order to express their message. Implementing legislation 
adopted pursuant to a flag protection amendment prohibiting the 
physical desecration of the flag would deprive an individual of 
only ``one rather inarticulate symbolic form of protest'' and 
leave that person with ``a full panoply of other symbols and 
every conceivable form of verbal expression'' to express 
whatever it is that one desires to express.\19\ Such was the 
status quo in 48 states prior to the Johnson ruling in 1989. 
During this long period when flag desecration statutes were in 
effect, wide open debate flourished, as it has throughout 
America's history.
---------------------------------------------------------------------------
    \19\ Johnson, 491 U.S. at 432 (Rehnquist, C.J., dissenting).
---------------------------------------------------------------------------
    The dissenting opinions in Johnson and Eichman collectively 
provide an instructive analysis of why Congressional action 
prohibiting flag desecration serves a legitimate interest. For 
example, Justice Stevens' dissent in Johnson extolled the 
significant and legitimate interest in preserving the flag:

        [S]anctioning the public desecration of the flag will 
        tarnish its value--both for those who cherish the ideas 
        for which it waves and for those who desire to don the 
        robes of martyrdom by burning it. That tarnish is not 
        justified by the trivial burden on free expression 
        occasioned by requiring that an available, alternative 
        mode of expression--including uttering words critical 
        of the flag, see Street v. New York, 394 U.S. 576, 89 
        S.Ct. 1354, 22 L.Ed.2d 572 (1969)--be employed.\20\
---------------------------------------------------------------------------
    \20\ Id. at 437 (Stevens, J., dissenting).

    Former Chief Justice John Marshall Harlan echoed these 
sentiments over half a century earlier when he stated that 
``love 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.'' \21\ Just as 
the Federal Government has a legitimate interest in preserving 
the quality of an important national asset, such as the Lincoln 
Memorial, from desecration, so too does the government have 
just as important an interest in prohibiting the desecration of 
the American flag.\22\
---------------------------------------------------------------------------
    \21\ Halter v. Nebraska, 205 U.S. 34, 41-42 (1907).
    \22\ Johnson, 491 U.S. at 438-39 (Stevens, J., dissenting).
---------------------------------------------------------------------------
    In Eichman, Justice Stevens, joined by Chief Justice 
Rehnquist, Justice White, and Justice O'Connor, began his 
dissent by noting the axiomatic First Amendment principle that 
``the Government may not prohibit the expression of an idea 
simply because society finds the idea itself offensive or 
disagreeable.'' \23\ However, Justice Stevens concluded that 
the Federal Government has a legitimate interest in protecting 
the intrinsic value of the American flag, because the flag, 
``in times of national crisis, inspires and motivates the 
average citizen to make personal sacrifices in order to achieve 
societal goals of overriding importance'' and ``at all times it 
serves as a reminder of the paramount importance of pursuing 
the ideas that characterize our society.'' \24\
---------------------------------------------------------------------------
    \23\ Eichman, 496 U.S. at 319.
    \24\ Id.
---------------------------------------------------------------------------
    H.J. Res. 10 would empower Congress to prohibit the 
physical desecration of the United States flag. The 
constitutional amendment itself does not prohibit flag 
desecration. Rather, it empowers Congress to enact legislation 
to prohibit the physical desecration of the American flag and 
establishes boundaries within which Congress may legislate to 
prosecute this conduct. Work on a statute will come at a later 
date, after three-fourths of the States ratify the amendment.
    Though a proposed flag protection amendment failed to 
garner a two-thirds majority in the House in the 101st 
Congress, a flag protection amendment has passed the House in 
every Congress since the 104th. In the 105th, 106th, 107th, and 
108th Congresses, language identical to H.J. Res. 10 passed the 
House by a two-thirds majority. In addition, all 50 States have 
passed resolutions calling on Congress to pass a flag 
protection amendment and send it to the States for 
ratification,\25\ and dozens of surveys since 1989 evidence 
that 75--80 percent of Americans have consistently supported 
amending the Constitution to protect the flag.\26\
---------------------------------------------------------------------------
    \25\ See, http://www.cfa-inc.org/about/flag amendl.htm.
    \26\ See, e.g., Public Opinion Poll by Market Strategies, Inc. 
(Mar. 13, 2002) at http://www.cfa-inc.org/issues/poll2.htm (finding 
seventy-five percent of Americans support such an amendment).
---------------------------------------------------------------------------

                                Hearings

    The Committee on the Judiciary held no hearings on H.J. 
Res. 10 during the 109th Congress. However, hearings were held 
on identical language proposed in the 105th, 106th, and 108th 
Congresses.\27\ Five hearings were also held on statutory and 
constitutional responses to the Supreme Court decision in Texas 
v. Johnson and the need for a flag protection amendment in the 
101st and 104th Congresses.\28\
---------------------------------------------------------------------------
    \27\ H.J. Res. 54: Proposing an Amendment to the Constitution of 
the United States Authorizing Congress to Prohibit the Physical 
Desecration of the Flag of the United States: Hearing on H.J. Res. 54 
Before the Subcomm. on the Constitution, House Comm. on the Judiciary, 
105th Cong. (Apr. 30, 1997); Prohibit the Physical Desecration of the 
Flag of the United States: Hearing on H.J. Res. 33 Before the Subcomm. 
on the Constitution, House Comm. on the Judiciary, 106th Cong. (Mar. 
23, 1999); Flag Protection Amendment: Hearing on H.J. Res. 4 Before the 
Subcomm. on the Constitution, House Comm. on the Judiciary, 108th Cong. 
(May 7, 2003).
    \28\ Statutory and Constitutional Responses to the Supreme Court 
decision in Texas v. Johnson: Hearings Before the Subcomm. on Civil and 
Constitutional Rights, House Comm. on the Judiciary, 101st Cong. (July 
13, 18, 19, and 20, 1989); Hearing on Flag Desecration Before the 
Subcomm. on the Constitution, House Comm. on the Judiciary, 104th Cong. 
(May 24, 1995).
---------------------------------------------------------------------------

                        Committee Consideration

    On May 25, 2005, the Committee met in open session and 
ordered favorably reported the joint resolution, H.J. Res. 10, 
without an amendment by a recorded vote of 17 yeas to 9 nays, a 
quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the Committee's 
consideration of H.J. Res. 10.
    1. An amendment was offered by Mr. Scott to delete the word 
``desecration'' and insert in its place the word ``burning.'' 
The amendment was defeated by a rollcall vote of 11 ayes to 19 
nays.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Lungren.....................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................
Mr. Inglis......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Mr. Flake.......................................................                              X
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Feeney......................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Conyers.....................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             11              19
----------------------------------------------------------------------------------------------------------------

    2. Final Passage. The motion to report favorably the joint 
resolution, H.J. Res. 10, was agreed to by a rollcall vote of 
17 yeas to 9 nays.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Lungren.....................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Inglis......................................................              X
Mr. Hostettler..................................................
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Mr. Flake.......................................................
Mr. Pence.......................................................
Mr. Forbes......................................................
Mr. King........................................................              X
Mr. Feeney......................................................
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             17               9
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

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

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the resolution, H.J.Res. 10, the following estimate 
and comparison prepared by the Director of the Congressional 
Budget Office under section 402 of the Congressional Budget Act 
of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 31, 2005.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.J. Res. 10, proposing 
an amendment to the Constitution of the United States 
authorizing the Congress to prohibit the physical desecration 
of the flag of the United States.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mark 
Grabowicz (for Federal costs), and Melissa Merrell (for the 
State and local impact).
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure.
H.J. Res. 10--Proposing an amendment to the Constitution of the United 
        States authorizing the Congress to prohibit the physical 
        desecration of the flag of the United States.
    H.J. Res. 10 would propose an amendment to the Constitution 
to allow the Congress to enact legislation that would prohibit 
physical desecration of the U.S. flag. The legislatures of 
three-fourths of the States would be required to ratify the 
proposed amendment within 7 years for the amendment to become 
effective. 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 estimates that 
any resulting costs would not be significant. H.J. Res. 10 
would not affect direct spending or revenues.
    H.J. Res. 10 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
and would impose no costs on State, local, or tribal 
governments. For the amendment to become part of the 
Constitution, three-fourths of the State legislatures would 
have to ratify the resolution, but no State would be required 
to take action on the resolution, either to reject it or 
approve it.
    The CBO staff contacts for this estimate are Mark Grabowicz 
(for Federal costs), and Melissa Merrell (for the State and 
local impact). This estimate was approved by Robert A. 
Sunshine, Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.J. 
Res. 10 would amend the Constitution to provide that Congress 
has the power to prohibit the physical desecration of the flag.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article V of the Constitution.

               Section-by-Section Analysis and Discussion

    The following discussion describes the bill as reported by 
the Committee. H.J. Res. 10 states: ``The Congress shall have 
power to prohibit the physical desecration of the flag of the 
Unites States.'' As interpreted by the Supreme Court, the First 
Amendment to the United States Constitution, which states that, 
``Congress shall make no law . . . abridging freedom of 
speech,'' limits the power of Congress to prohibit the physical 
desecration of the flag. In light of the Supreme Court's 
interpretation, a constitutional amendment is the only 
alternative for proscribing the physical desecration of the 
flag. H.J. Res. 10 would empower Congress to pass legislation 
to prohibit the physical desecration of the flag of the United 
States.
    This proposed constitutional amendment sets the parameters 
for future action by the Congress on this issue. After the 
amendment is ratified, the elected representatives of the 
people can decide whether to enact legislation prohibiting the 
physical desecration of the flag. Two key issues will need to 
be considered in enacting legislation to protect the flag from 
physical desecration. First, Congress must consider the meaning 
of ``physical desecration.'' The amendment itself requires 
physical contact with the flag. Under this amendment, Congress 
could not punish mere words or gestures directed at the flag, 
regardless of how offensive they were. Webster's Ninth New 
Collegiate Dictionary defines ``desecrate'' as follows: ``1: to 
violate the sanctity of: PROFANE 2: to treat irreverently or 
contemptuously often in a way that provokes outrage on the part 
of others.'' Black's Law Dictionary defines ``desecrate'' as 
``[t]o divest (a thing) of its sacred character; to defile or 
profane (a sacred thing)'' and ``flag desecration'' as ``the 
act of mutilating, defacing, burning, or flagrantly misusing a 
flag.'' Congress, under this constitutional amendment, could 
clearly prohibit burning, shredding, and similar defilement of 
the flag.
    In any event, the word ``desecration'' was selected because 
of its broad nature in encompassing many actions against the 
flag. Such broad terms are commonly used in constitutional 
amendments; for example, ``free exercise'' in the First 
Amendment; ``unreasonable searches and seizures'' and 
``probable cause'' in the Fourth Amendment; ``due process'' and 
``equal protection'' in the Fourteenth Amendment. The use of 
broad terms in constitutional amendments, such as the word 
``desecration,'' are necessary to give Congress discretion when 
it moves to enact implementing legislation. Debate and 
discussion as to what forms of desecration should be outlawed, 
such as burning, will come at a later date in Congress. 
Otherwise, Congress would be restricted and unduly limited in 
achieving its objective and purpose in approving a 
constitutional amendment such as H.J. Res. 10.
    Second, Congress will have to decide what representations 
of the flag of the United States are to be protected. As 
defined in the United States Code, ``[t]he flag of the United 
States shall be thirteen horizontal stripes, alternate red and 
white; and the union of the flag shall be forty-eight stars, 
white in a blue field.'' \29\ The resolution does not affect 
this definition. In enacting a statute, Congress will need to 
decide which representations of the flag are to be protected 
from physical desecration. For instance, the flag of the United 
States may be defined in this future authorizing statute as 
only a cloth, or other material readily capable of being waved 
or flown, with the characteristics of the official flag of the 
United States as described in 4 U.S.C. Sec. 1. These details 
will be dealt with in implementing legislation subsequent to 
the adoption and ratification of H.J. Res. 10.
---------------------------------------------------------------------------
    \29\ 4 U.S.C. Sec. 1. ``On the admission of a new State into the 
Union one star shall be added to the union of the flag; and such 
addition shall take effect on the fourth day of July then next 
succeeding such admission.'' 4 U.S.C. Sec. 2.
---------------------------------------------------------------------------

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes H.J. Res. 10 
makes no changes to existing statutes.

                           Markup Transcript






                            BUSINESS MEETING

                        WEDNESDAY, MAY 25, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:02 a.m., in 
Room 2138, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will come to order. A 
working quorum is present.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, I now call up 
H.J. Res. 10 proposing an amendment to the Constitution 
authorizing Congress to prohibit the physical desecration of 
the flag of the United States for purposes of markup and move 
its favorable recommendation to the House. Without objection, 
the joint resolution will be considered as read and open for 
amendment at any point.
    [The resolution, H.J. Res. 10, follows:]
    
    
    Chairman Sensenbrenner. The chair recognizes the gentleman 
from Ohio, Mr. Chabot, the Chairman of the Subcommittee on the 
Constitution, for 5 minutes to explain the joint resolution.
    Mr. Chabot. Thank you, Mr. Chairman.
    The flag of the United States is the most recognized and 
sacred symbol of freedom and democracy in the world. Whether in 
war atop the United States Capitol or sewn to the sleeves of 
our brave men and women sent into battle, the flag represents 
the values that all Americans hold dear. In the midst of the 
rubble and debris at Ground Zero, where the World Trade Center 
towers once stood, three New York City firefighters raised the 
flag to the top of the pole. The photographer who captured this 
shot said, ``This was an important shot. It told of more than 
just death and destruction, it said something to me about the 
strength of the American people and of these firemen having to 
battle the unimaginable. It had drama, spirit, and courage in 
the face of disaster.''
    It is this symbolism and resilience that has made the flag 
the most beloved and cherished symbol in our Nation's history. 
Despite this, 119 incidents of flag desecration have been 
reported since 1994. The movement to pass legislation 
prohibiting the desecration of the American flag began in the 
late 1800's, with every State having a flag desecration law on 
the books by 1932. In 1968, the Federal Government passed its 
statute prohibiting such conduct. By 1989, every State in the 
Union except Alaska and Wyoming outlawed such conduct.
    However, in 1989, the United States Supreme Court, by the 
narrowest of margins, effectively invalidated all State and 
Federal laws that prohibited flag desecration. In a 5-4 
opinion, the Court concluded that the burning of the American 
flag as part of a political demonstration was expressive 
conduct protected by the first amendment. Congress responded to 
the Supreme Court's decision almost instantaneously through 
bipartisan and overwhelming support, enacting the Flag 
Protection Act of 1989, which passed the House by a vote of 371 
to 43 and the Senate by a vote of 91 to 9. However, in a 5-4 
opinion the following year, the Supreme Court held the Flag 
Protection Act unconstitutional in United States v. Eichman. 
Because of these narrowly decided Supreme Court decisions, a 
constitutional amendment provides the only remaining option for 
the American public to restore protection to our Nation's most 
visible symbol. The Flag Protection Amendment would restore the 
authority of Congress to prohibit the physical desecration of 
the flag.
    Some would argue that this proposed amendment would erode 
the first amendment protections that all Americans enjoy. I 
disagree with this assertion as do the majority of Americans. 
The Flag Protection Amendment is consistent with the first 
amendment while maintaining the flag as a national symbol and 
giving it the protection it deserves. The first amendment does 
not grant individuals unlimited rights to engage in any form of 
desired conduct under the cloak of free expression. For 
instance, burning a $10 bill and pushing over a tombstone are 
actions which can be utilized to express a particular political 
or social message, but are unquestionably illegal. In addition, 
the amendment proposed today does not contain any language that 
will prevent individuals from speaking out against the United 
States, its policies, its people, its flag, or anything that 
these things represent.
    This amendment simply prohibits acts of physical 
desecration of the Nation's most enduring and revered symbol, 
nothing more. The House of Representatives has passed the Flag 
Protection Amendment by more than the two-thirds majority vote 
needed in five separate Congresses; in four of these Congresses 
language identical to H.J. Res. 10 that we are considering 
today passed the House.
    Though a flag protection amendment received majority 
support in the Senate on two separate occasions, it failed both 
times to garner the two-thirds majority by four votes.
    All 50 States have passed resolutions calling on Congress 
to pass and send a flag protection amendment to the States for 
ratification, and 75 to 80 percent of Americans have 
consistently supported amending the Constitution to protect the 
flag.
    Such overwhelming support by the American people sends a 
clear message to Congress that we must adhere to the wishes of 
the people and adopt this proposed amendment to the 
Constitution.
    I yield back the balance of my time.
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Mr. Chairman, I rise in opposition to this 
measure before us. Because it's always tempting for Congress to 
show the Supreme Court in particular who's boss, and it has 
attempted to do so since 1989. We have two Supreme Court cases 
on this very same point. It was a concern about the tyranny of 
the majority that led the framers of the Constitution to create 
an independent judiciary free of political pressure to ensure 
the Legislative and Executive branches would honor the Bill of 
Rights. A constitutional amendment banning flag desecration 
really flies in the face of this very carefully balanced 
structure.
    Now, the consideration of this measure today will show 
whether the Members of this Committee, the Judiciary Committee, 
have the strength to remain true to our forefathers' 
constitutional ideals and defend our citizens' right to express 
themselves even when we vehemently disagree with their method 
of expression. I deplore the desecration of the flag in any 
form. But I strongly oppose this resolution because it goes 
against the very ideals on which the country has been founded.
    If we allow H.J. Res. 10 to go to the floor and be adopted, 
this will be the first time in the history of this country that 
the people's representatives voted to alter the Bill of Rights 
to limit freedom of speech. It's been said that the true test 
of any Nation's commitment to freedom of expression lies in its 
ability to protect unpopular expression, and that is the basis 
of my objection to this measure before us.
    As Oliver Wendell Holmes said, ``the Constitution protects 
not only freedom for the thought and expression we agree with, 
but freedom for the thought that we hate.'' And so by limiting 
the scope of the first amendment's free speech protections, I 
see us setting a most dangerous precedent. If we open the door 
to criminalizing constitutionally protected expression related 
to the flag, I predict it will be difficult to limit further 
efforts to censure speech. And once we decide to limit freedom 
of speech, limitations on freedom of the press and freedom of 
religion, I fear, may not be far behind.
    So join with me in rejecting H.J. Res. 10.
    And I would return any time not used, Mr. Chairman.
    Chairman Sensenbrenner. Without objection, all Members' 
opening statements will be included in the record at this 
point.
    Are there amendments?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York.
    Mr. Nadler. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    Today we endure the Republican rite of spring--a proposed 
amendment to the Bill of Rights to restrict what it calls flag 
desecration.
    Why spring? Because the calendar tells us that Memorial Day 
will soon be upon us. June 14 is Flag Day. And then we have 
July 4. Members need to send out a press release extolling the 
need to protect the flag as if the flag somehow needed Congress 
to protect it.
    The flag is a symbol of our great Nation and the 
fundamental freedoms that have made this Nation great. If the 
flag needs protection at all, it is from Members of Congress 
and super-patriots who value the symbol more than they value 
the freedoms the flag represents. Quite frankly, the crass 
political use of the flag to question the patriotism of those 
who value our fundamental freedoms is a greater insult to those 
who died in the service of our Nation than is the burning of 
the flag.
    I am certain that we will hear speeches and probably 30-
second attack ads invoking the sacrifice of our troops in the 
field, invoking the destruction of the World Trade Center as a 
pretext for carving up the protection of free speech embodied 
in the first amendment and in the decisions of the United 
States Supreme Court. That is a shameful exploitation of the 
patriotism and courage of those fine and courageous people who 
died in the service of our country. It is the civic equivalent 
of taking the Lord's name in vain.
    You want to honor the sacrifice of our troops? Protect the 
rights they fight for. Protect the rights of veterans. Don't 
let the Administration send our troops into harm's way without 
body armor or Humvee armor or the equipment they need to 
survive. Playing games with the Constitution does not honor 
them.
    People have rights in this country that supersede public 
opinion, even strongly held public opinion. If we do not 
preserve those rights, then the flag will have been desecrated 
far beyond the capability of any individual with a cigarette 
lighter.
    Let there be no doubt that this amendment is aimed at 
persecuting ideas. Current Federal law says that the preferred 
way to dispose of a tattered flag is to burn it. But there are 
those who would criminalize the same act of burning the flag if 
it is done to express political dissent. The same act would be 
a crime under this amendment if done for purposes of saying I 
disagree with whatever-I-disagree-with, as opposed to for some 
other reason. The same act. So what's really being criminalized 
is not the act, but the expression of the idea. That's why the 
Supreme Court found it unconstitutional.
    Current Federal law, which is constitutionally void, makes 
it a misdemeanor to use the flag for advertising or on 
packaging. How many Members of Congress, used car dealers, 
attendees at the Republican National Convention the last few 
times, fast food restaurants and other seemingly legitimate 
individuals and enterprises have engaged in this act, have used 
the flag for advertising or on packaging, have put them on 
slippers and clothes--an act which our laws define as flag 
desecration? This amendment would presumably make that law 
constitutional once more. If ratified, I think there are more 
than a few people who will have to redesign their campaign 
materials to stay out of the pokey.
    As if this assault on the Bill of Rights is not enough, 
this Committee didn't even bother holding----
    And let me say one other thing. We all see many times 
movies. In these movies we see actors dressed up as Nazi 
soldiers burning or trampling the flag. Do we arrest the 
actors? No, we don't' arrest the actors because we don't care 
about the act of burning the flag because we know they're not 
burning the flag to express a sentiment of dissent. They're 
burning the flag as play-acting. So it's the idea behind the 
burning of the flag that we seek to criminalize here. We're not 
going to arrest the actors because we don't care about the 
ideas they're expressing. And ideas are protected and ought to 
remain protected by the first amendment.
    As if this assault on the Bill of Rights is not enough, 
this Committee didn't even bother holding a hearing on this 
constitutional amendment. The Subcommittee on the Constitution 
did not bother to hold a markup or to vote on it. This cavalier 
attitude toward the Bill of Rights is offensive and revealing: 
Why discuss it? Why look into it? It's only the Constitution. 
We're only talking about the rights of a few malcontents for 
whom even opponents of this amendment, many, have contempt. So 
who cares?
    But we ought to care. This is our freedom of speech that is 
under assault here. People have died for this Nation and for 
the rights which this flag so proudly represents. Let us not do 
anything to diminish the freedoms, to diminish the way of life 
for which they made the ultimate sacrifice. That's what this 
constitutional amendment does--it limits the expression of 
ideas in the guise of flag desecration.
    And to protect against what threat? How many--do we see an 
epidemic of flag desecrations? When was the last time we saw 
someone burn a flag? Maybe during the Vietnam War. Maybe once 
or twice in 1991 or a couple of years ago. What are we doing 
here? We have no huge threat to protect against, but we do 
threaten our free speech and the Bill of Rights. That's not 
what makes sense. I urge us not to pass this bill, and I thank 
you.
    Chairman Sensenbrenner. Are there amendments?
    The gentleman from Virginia, Mr. Scott?
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.J. Res. 10, offered by Mr. Scott. 
Page 2, line 9, strike ``desecration'' and insert ``burning.''
    [The amendment of Mr. Scott follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, my amendment would change the 
constitutional amendment to prohibit all flag burning. If we're 
going to mark up this bill without any hearings or Subcommittee 
deliberation, we should at least acknowledge the whole purpose 
of the underlying constitutional amendment is to stifle 
political expression that we find offensive. While I personally 
agree that we should respect the flag, I do not think it's 
appropriate to use the criminal code to enforce our views on 
those who disagree with us.
    The Supreme Court has considered the restrictions on the 
Bill of Rights that are permissible by the Government. For 
example, under the first amendment, with respect to speech, 
time, place, and manner may generally be regulated while 
content may not. There are, of course, exceptions. Speech that 
creates an imminent threat of violence or threatens safety or 
patently offensive expressions with no redeeming social value, 
those may be restricted. But generally you cannot restrict 
content. The distinction is that you can restrict time, place, 
and manner, but not content.
    So you can restrict the time, place, and manner of a 
protest or demonstration, what time it is held, where it's 
held, but you cannot restrict what people are marching or 
demonstrating about. You cannot ban a particular march or 
demonstration just because you disagree with the message, 
unless you decide to ban all marches. You cannot allow marches 
by the Republican Party but not the Democratic Party, and you 
cannot allow pro-war rallies but not anti-war rallies.
    Some have referred to the underlying resolution as the 
anti-flag burning amendment and they speak about the necessity 
of this amendment to keep people from burning flags. But 
really, the only place you ever see a flag burned is in 
compliance with the Federal Code at flag ceremonies disposing 
of a worn-out flag. Ask any Boy Scout or member of the American 
Legion how to dispose of a worn-out flag and they'll tell you 
that you burn the flag at a respectful ceremony.
    This proposed constitutional amendment is all about 
expression and all about prohibiting expression in violation of 
the spirit of the first amendment. By using the word 
``desecration,'' we are giving the Government officials power 
to decide that one can burn the flag if you're saying something 
nice and respectful, but you are a criminal if you burn the 
flag while saying something that insults the local sheriff. 
This is an absurd distinction and is in direct contravention 
with the whole purpose of the first amendment.
    Mr. Chairman, in addition to the violation of the spirit of 
the Bill of Rights, this amendment has practical problems, too. 
For example, what is a flag; can you desecrate a picture of the 
flag; can a flag with the wrong number of stripes or stars be 
desecrated? During the Vietnam War laws were passed prohibiting 
draft cards from being burned and protestors, with great 
flourish, would say that they're burning a draft card, and 
offend everybody, but then nobody would know whether it was 
actually a draft card or just a piece of paper. And what 
happens if you desecrate your own flag in private? Are you 
subject to the criminal prosecution if somebody finds out?
    And Mr. Chairman, I feel compelled to comment on the 
suggestions that stealing and destroying somebody's personal 
property is protected if the personal property happens to be a 
flag. The law is clear. It is theft and destruction of personal 
people whether it is a flag or not. And if the burning is done 
in such a manner as to provoke a riot or breach of the peace, 
that would be a crime. Provoking riots and provoking breaches 
of the peace is a crime whether the flag is involved or not.
    This legislation is aimed at criminalizing political 
speech, and we should not politicize speech you disagree with 
just because you have the votes.
    In order to make this amendment consistent with the ideals 
of the first amendment's prohibition against limiting freedom 
of expression, I am proposing that we just ban all flag 
burning. My amendment has no content-based restrictions. It 
makes the underlying amendment content-neutral. All flag 
burning would be outlawed. The underlying resolution permits 
flag burning when you're saying something nice while you're 
burning the flag, but would criminalize burning the flag while 
you're saying something bad. If we really intend to ban flag 
burning, then let's ban flag burning, consistent with the 
ideals of the first amendment. What this amendment does is to 
take the content out of it.
    And so, Mr. Chairman, I would ask unanimous consent to 
introduce for the record letters from several veterans groups, 
civil rights groups, legal organizations, as well as several 
individuals opposing this legislation. I ask unanimous consent 
for these letters to be entered into the record.
    Chairman Sensenbrenner. Without objection.
    [The information follows:]
    
    
    Mr. Scott. I urge my colleagues to support the amendment.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. Move to strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you. I rise in opposition to the 
amendment. I would first note that there has been some 
criticism raised by the other side that we didn't have a 
hearing this Congress. I would note that we had hearings in the 
Subcommittee on the Constitution in the 105th Congress, the 
106th Congress, the 108th Congress, and we had complaints 
during those hearings by Members that were saying here we go 
again, we're having another hearing on this. And had we had a 
hearing on it this time, we would have had that same complaint. 
So one cannot win in this particular instance.
    Mr. Nadler. Would the gentleman yield?
    Mr. Chabot. I'd be happy to yield.
    Mr. Nadler. It is true. You would have that complaint. We'd 
say it's unnecessary because it's an unnecessary and silly 
bill, but we still--but as little as I like to waste my time on 
such hearings, the fact is on a matter of such import we should 
have hearings.
    Mr. Chabot. Reclaiming my time. But, you know, you're 
damned if you do and you're damned if you don't. So we didn't 
this time, and got the criticism. And we appreciate the 
gentlemen's criticism, but I think they're inaccurate in their 
arguments.
    Now, relative to this particular amendment and why it 
should be rejected, it should be rejected because, while 
prohibiting flag burning, the proposed amendment would still 
allow other types of defilement and defacement of the American 
flag. The word ``desecration'' was selected in order to assure 
that the flag would be protected from physical acts other than 
just burning. Black's Law Dictionary defines ``flag 
desecration'' as ``the act of mutilating, defacing, burning, or 
flagrantly misusing a flag;'' and ``desecrate'' as to ``divest 
a thing of its sacred character; to defile or profane a sacred 
thing.'' And I would argue that our flag is a sacred thing. In 
contrast, ``burning'' means simply ``affecting with or as if 
with heat,'' as defined in the Merriam-Webster Dictionary.
    Limiting the amendment to only the burning of the flag 
rather than desecration would unduly limit the object and 
purpose of this resolution to give Congress the power to 
protect the flag from a range of physical acts of defilement or 
defacement. The word ``desecration'' was selected because of 
its broad nature in encompassing many actions against the flag. 
Such broad terms are commonly used in constitutional 
amendments. For example, ``free exercise'' in the first 
amendment. ``Unreasonable searches and seizures'' and 
``probable cause'' in the fourth amendment. ``Due process'' and 
``equal protection'' in the fourteenth amendment.
    Thus, it's essential that we continue to use broad terms in 
constitutional amendment such as the word ``desecration,'' in 
order to give Congress discretion when it moves to enact 
implementing legislation. Debate and discussion as to what 
forms of desecration should be outlawed, such as burning, will 
come at a later date in Congress.
    Again, this particular resolution gives us the ability, it 
gives Congress the ability to get more specific in legislation 
later on. Right now, we don't have that right. The Supreme 
Court on two separate occasions has struck that down. They've 
given us no alternative. If you want to protect the flag, then 
you vote for this. If you don't care, then you vote the other 
way.
    Mr. Scott. Will the gentleman yield?
    Mr. Chabot. I'll yield.
    Mr. Scott. I would want to agree with you that the word 
``desecration'' is a subjective term. But the point of this 
amendment is it takes the content and attitude out of it. 
Because if you burn the flag and say something nice, that would 
not be desecration. But if you burn the flag while you're 
saying something insulting, that would be desecration. The 
point of this amendment is to take the content and attitude out 
of it. And if you're going to criminalize the act, criminalize 
the act--something objective and not depending on whether 
someone is insulted by the speech and message or not.
    Mr. Chabot. Reclaiming my time. I've been to a number of 
these ceremonies. I'm sure that many of the other gentlemen and 
gentleladies have been as well, when they have a helmet and 
they're putting in people that have died during the course of 
that year. There are many instances in which the ceremonies 
occur and it's clear--I mean, we're talking about defacement, 
defilement, desecration, and burning can be one of those 
things. We would get into the details of this later on. We've 
got to get past the other body's vote against this, though. 
We've had the votes here in the House; the problem has been 
over in the other body.
    I yield back the balance of my time.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Mr. Chairman, the gentleman from Ohio is quite 
correct. The word ``desecration'' is a broad term. He gave a 
number of definitions, including I think he said, ``profane,'' 
``defame.'' These are terms derived, as is the word 
``desecration,'' from a religious context. And it's used in 
that context. He also said that ``we're defining it broadly; 
the Constitution defines `due process' broadly,'' et cetera. 
Quite correct. We define rights broadly. No one should be put 
in jail without due process; no one shall be deprived of 
freedom of speech without due process of law, et cetera. We 
define rights broadly.
    We define crimes narrowly, because we don't want to overly 
restrict people's freedoms. One of the problems with this 
amendment--one of the problems--is that what does 
``desecration'' mean? It means almost anything. And you give 
Congress the power to define it as almost anything. And not 
just physical. Under this amendment, Congress will clearly have 
the power, as you put it a moment ago, ``desecration'' means 
defamation, profanation, blasphemy generally, in religious 
terms. If someone said something not nice about the flag, you 
could make that criminal--without any physical act. There's 
nothing that says ``physical'' in here. You could say that 
anyone who defames the actions of the country might be read to 
be defaming the flag and therefore desecrating the flag. I can 
see a court holding that. I can see some congressmen voting for 
that. And that's one of the problems.
    I would suggest that--and I'm going to offer an amendment 
in a moment, as soon as we draft it, that we add----
    It says ``physical.'' I'm sorry. I withdraw that. Never 
mind what I said about--but ``physical desecration'' still 
means any of the acts which, if done with ideas that people do 
not find objectionable, is not considered desecration. And that 
is the crux of the problem here. Any physical act which you can 
think of doing with a flag you would not criminalize if done 
without objectionable connecting ideas--objectionable to the 
authorities, that is. And that's the basic problem here, and 
that's why it's a gross violation of freedom of speech. That's 
why the Supreme Court struck it down and that's why we 
shouldn't amend the Constitution.
    Chairman Sensenbrenner. Does the gentleman yield back?
    Mr. Nadler. Yes, I yield back.
    Chairman Sensenbrenner. The question is on the amendment.
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Michigan.
    Mr. Conyers. I have a motion at the desk.
    Chairman Sensenbrenner. The clerk will report the motion.
    Mr. Chabot. Mr. Chairman, reserving the right to object.
    Chairman Sensenbrenner. The clerk will report the motion 
first.
    The Clerk. Motion to postpone to a date certain by Mr. 
Conyers: I move that the consideration of H.J. Res. 10 be 
postponed until June 15, 2005.
    Chairman Sensenbrenner. The motion is non-debatable. The 
question is agreeing to the motion. Those in favor will say 
aye. Opposed, no?
    The noes appear to have it.
    Mr. Conyers. May I have a record vote, Mr. Chairman?
    Chairman Sensenbrenner. Record vote is ordered.
    The question is on the motion to postpone to a day certain 
offered by the gentleman from Michigan, Mr. Conyers. Those in 
favor of the motion will, as your names are called,l answer 
aye; those opposed will vote no.
    The clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    [No response.]
    The Clerk. Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their vote? The gentleman from Texas, Mr. Smith?
    Mr. Smith. I vote no, Mr. Chairman.
    The Clerk. Mr. Smith, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Iowa, Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote?
    The gentlewoman from Texas, Ms. Jackson Lee?
    Ms. Jackson Lee. How am I recorded?
    The Clerk. Mr. Chairman, I don't have Ms. Jackson Lee 
recorded.
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 12 ayes and 20 noes.
    Chairman Sensenbrenner. And the motion is not agreed to. 
The question recurs on the amendment offered by the gentleman--
--
    Mr. Conyers. Mr. Chairman, point of order.
    Chairman Sensenbrenner.--the gentleman from Virginia, Mr. 
Scott.
    The gentleman from Michigan will state his point of order.
    Mr. Conyers. Mr. Chairman, my point of order is that the 
motion that I made is in fact debatable. And I make a point of 
order against your preventing us from having a discussion as to 
why I wanted to move it to June 15, 2005, which is simply 
because there have been no hearings. And the House rules, 
Clause 4, rule 16, provides that a motion of this nature may be 
subject to debate.
    Chairman Sensenbrenner. The chair was in error. Motions to 
postpone to a day certain are debatable motions. However, the 
point of order is moot because the motion has already been 
disposed of by a rollcall vote.
    Mr. Conyers. Well----
    Chairman Sensenbrenner. So the question does recur on the 
amendment offered----
    Mr. Nadler. Mr. Chairman? Mr. Chairman?
    Mr. Chairman?
    Mr. Chairman, I move that further consideration of this 
bill be postponed to June 16.
    Chairman Sensenbrenner. Okay, the question is whether----
    Mr. Nadler. And I ask--we are entitled to debate on that 
now. And I yield to the gentleman from Michigan.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you. I yield to the distinguished Ranking 
Member.
    Mr. Conyers. Thank you, Mr. Nadler.
    Ladies and gentlemen of the Committee, this is a very 
simple matter of process, namely that since there have been no 
hearings on this measure, to tell Members that there were 
hearings somewhere in the distant past and that therefore there 
are no further hearings necessary on a constitutional amendment 
to me offends the nature of the importance of the Committee and 
of amending the Constitution of the United States.
    And so it was my intention to offer a motion that would set 
a date for such a hearing on or before June 15, 2005. That's 
all I'm trying to do.
    Now we have a suggestion that we do it on June 16, which I 
support entirely. But it would seem that the least we could do 
is have hearings in which we bring in some other authorities 
rather than our 5 minutes of debate both pro and con, and 
examine this question more closely. The importance of amending 
the Constitution of the United States requires that we at least 
observe, on constitutional amendments, that we have had 
hearings. I think we should have hearings on all measures that 
we bring to the full Committee, but at least on a 
constitutional amendment.
    And so I urge my colleagues on the other side of the aisle 
to use some sense of fairness in merely postponing this for a 
short while for us to have some current, up-to-date authorities 
come before our Subcommittee to deal with this very important 
question.
    Mr. Nadler. Thank you. Reclaiming my time.
    I agree with the distinguished Ranking Member. The fact is 
that it's all well and good to say we've had hearings in prior 
Congresses and maybe the testimony wouldn't change, but it is 
rather contemptuous of the Constitution to offer an amendment 
to the Constitution and not even have a single hearing on it, 
not even have a Subcommittee vote on it. Frankly, I don't know 
that there is any real--if anybody really cares about amending 
the Constitution for this purpose, as opposed to having the 
political advantages of talking about amending the 
Constitution. So maybe that's why we don't care about going 
through the proper forms, because it's not taken seriously as a 
real proposition.
    Mr. Weiner. Will the gentleman yield?
    Mr. Nadler. One moment.
    I think that's a mistake, because one of these days, God 
forbid, it may actually be adopted and then that would be a 
serious harm to the freedom of this country, and it should not 
be done without proper consideration even if the motive is 
really only for transitory political gain. We're playing with 
fire here.
    Who wanted me to yield?
    Mr. Weiner. I did, Mr. Nadler.
    Mr. Nadler. Oh, yes. I'll yield.
    Mr. Weiner. You know, just echoing that point. There's 
another issue here of timing. The Senate is not going to pass 
this. The Senate hasn't in the past. So why don't, since you've 
been in the embarrassing situation with a Republican House, a 
Republican Senate, a Republican presidency, a Republican 
judiciary, why don't you let them go first this time? You've 
been passing this and having it stopped in the Senate. 
Apparently your powers of persuasion stop at the doors to this 
room. Perhaps these extra couple of weeks implicit in the 
Nadler motion and in the Conyers motion, maybe it will give you 
a chance to line up some of your troops in the other body, 
because they've shown no indication that they're prepared to 
walk off this cliff with you. Frankly, that's probably a good 
thing. Rarely do I wake up in the morning and thank my lucky 
stars for the other body, but in this case maybe in the 2 weeks 
extra that you'll have, you'll be able to work your remarkable 
powers of persuasion on them. And that might be something else 
that we can do with the additional time granted by the Nadler 
motion.
    Mr. Nadler. Reclaiming my time.
    I agree with the distinguished gentleman, except that I 
will say that I wake up every day thanking God for the 
existence of the other body.
    Chairman Sensenbrenner. Does the gentleman wish to yield 
back?
    Mr. Nadler. Yes, I yield back.
    Chairman Sensenbrenner. The chair recognizes himself for 5 
minutes in opposition to the motion.
    The arguments that have been advanced by those who wish to 
delay this matter for a few weeks would have validity if there 
were new arguments that were advanced in opposition to this 
amendment. The fact is, there aren't. And having a hearing on 
this amendment will simply have everybody validating the 
arguments that have been made both pro and con in hearings that 
have been held before the Subcommittee in previous Congresses. 
If there were new arguments, I'd like to hear them. But since 
there aren't, we don't need to have another hearing. I think we 
should proceed. If we wish to vote against the amendment, 
that's our prerogative.
    Mr. Conyers. Will the Chairman yield?
    Chairman Sensenbrenner. If not, then we should support it. 
I yield to the gentleman from Michigan.
    Mr. Conyers. I thank the Chairman for yielding. I wish I 
knew as well as he did that there are no new arguments to be 
advanced. We don't know who the witnesses would be. I have no 
way of telling if there are new arguments or not. But 
furthermore, Mr. Chairman, with all due respect, I don't think 
a lot of Members remember what the old arguments are, much less 
what the new ones are going to be.
    And I thank the gentleman for yielding.
    Chairman Sensenbrenner. Reclaiming my time.
    There are hearing records that have been printed in the 
hearings in the past and we will be happy to distribute those 
to the Members that wish to read them.
    I yield back the balance of my time.
    The question is on the motion----
    Mr. Weiner. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Weiner.
    Mr. Weiner. I don't need 5 minutes. I just want to strike 
the last word for the purpose of making the argument that, you 
know, frankly, part of what we could learn since the last time 
that we did this bill is perhaps this is not the burning, 
searing issue that you thought it was last year or the year 
before or the year before. Perhaps we'll hear some evidence 
that will persuade us that the problem of flag desecration has 
reached new epidemic proportions. Maybe those of us who are not 
convinced that this has been exactly the most riveting problem 
facing the country since September 11, maybe those of us who 
believe that actually there's been greater respect for the flag 
since September 11--more people displaying it, more people 
showing it deference, more people displaying it in a way that 
might run afoul of this constitutional amendment because of the 
way it hangs from their rearview mirror or hangs from their car 
bumper.
    I think, frankly, as the years go by very often we do gain 
greater perspective on things. Sometimes we even find that 
amendments to the Constitution that we passed were not wise and 
we had to undo them. Sometimes we find with greater passage of 
time that cooler heads prevail and that maybe the political 
imperatives of gaining some traction on an issue are not nearly 
as important as having fidelity to the institution of the 
Constitution. Maybe the political posturing that sometimes 
seems like it's something valuable to do leading up to a 
presidential campaign, maybe it doesn't seem so ripe right now. 
That's the reason why you wait. This is a serious matter. It's 
not--it should not be seen as just another twig you throw on 
the fire of the political barnstorm.
    I think that, frankly, being cautious and being 
deliberative, I think, shows respect to the weight of the issue 
that we're showing here. If you have another hearing, if you 
have other people come before us, if you have people testify, 
who knows--is it so preposterous that someone might be 
persuaded to change their mind on this issue? I don't think so. 
And I think that that's--frankly, very often we find ourselves 
in a situation in this Committee where it's evocative of 
Groundhog Day, that we're dealing with issues again and again 
and again and again. Sometimes just the pure drumbeat of the 
wisdom of the witnesses sometimes does have influence, and I 
think that we shouldn't dismiss it. Because if you take your 
argument to its logical extreme, we should just say why have 
hearings? There are books that have been printed, articles that 
have been published, let's just go and read them and let's just 
gather up all the votes at the end of the week and just vote 
them all without any hearings.
    So I think that the Nadler motion offers some wisdom to us.
    Mr. Conyers. Would the gentleman yield?
    Mr. Weiner. Certainly.
    Mr. Conyers. I thank him for raising the question that we 
should all have old copies of hearings distributed to all 
Members that want to find out what all the arguments have been 
over the years. I don't think that solves the question of the 
importance of hearings right now.
    There is something else that occurred to me, Mr. Weiner, 
and that is the fact that Amnesty International has said that 
we have one of the worst human rights records in the world. And 
it seems to me that if we are to be held as the beacon of 
democracy, of constitutional order, it's very important that 
since 9/11 all of our acts are really being scrutinized 
internationally quite closely. I don't think that we would 
upset the march of the leadership in the House, the Senate, and 
the Executive Branch if we were to hold hearings at the 
Subcommittee level and have some witnesses there.
    In all fairness, this is a matter that is going to be 
examined around the world. As the leader of a democratic 
constitutional system of Government, as the one country that 
advocates order more than any other, it seems to me exceedingly 
important that this small detail, overlooked until now, be 
observed.
    And I thank the gentleman for the time.
    Mr. Scott. Would the gentleman yield?
    Mr. Weiner. I have a few seconds, but I'll be glad to yield 
the final balance of my time to Mr. Scott.
    Mr. Scott. I thank the gentleman for yielding.
    I just wanted to remind the Committee what we're voting on: 
Page 2, line 9, strike ``desecration,'' insert ``burning,'' so 
that all flag burning will be illegal, not just flag burning 
that is insulting to the sheriff while it would be okay to burn 
the flag while you're saying something nice.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    The first question is on the motion offered by the 
gentleman from New York, Mr. Nadler, to postpone consideration 
until June 16. Those in favor will say aye; opposed, no.
    The noes appear to have it.
    A rollcall is ordered. The question is on the motion to 
postpone. Those in favor will, as your names are called, answer 
aye; those opposed, no. The clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    [No response.].
    The Clerk. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    [No response.]
    The Clerk. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? The gentleman from California, Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no.
    Chairman Sensenbrenner. The gentleman from Utah, Mr. 
Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no.
    Chairman Sensenbrenner. The gentleman from Arizona, Mr. 
Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their votes? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 11 ayes and 19 noes.
    Chairman Sensenbrenner. And the motion to postpone 
consideration until a date certain is not agreed to.
    The question now occurs on the amendment offered by the 
gentleman from Virginia, Mr. Scott. Those in favor will say 
aye; opposed, no.
    The noes appear to have it.
    rollcall? The question is on agreeing to the Scott 
amendment. Those in favor will, as your names are called, 
answer aye; those opposed, no. The clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Lungren?
    Mr. Lungren. No.
    The Clerk. Mr. Lungren, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. No.
    The Clerk. Mr. Inglis, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    [No response.]
    The Clerk. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. No.
    The Clerk. Mr. Franks, no. Mr. Gohmert?
    Mr. Gohmert. No.
    The Clerk. Mr. Gohmert, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. Aye.
    The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Members who wish to cast or change 
their votes? The gentleman from California, Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Feeney.
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 11 ayes and 19 noes.
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee?
    The Clerk. Mr. Chairman, Ms. Jackson Lee is recorded as an 
aye.
    Chairman Sensenbrenner. The clerk will report.
    The Clerk. Mr. Chairman, there are 11 ayes and 19 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to. 
Are there further amendments?
    The gentlewoman from----
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers.
    Mr. Conyers. Could I ask unanimous consent to put the 
Amnesty International record of the United States in the record 
at this point?
    Chairman Sensenbrenner. Without objection.
    Mr. Conyers. Thank you.
    Mr. King. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Iowa seek recognition?
    Mr. King. Reserving my right to object, I wonder if the 
Ranking Member might yield to a question?
    Mr. Conyers. Of course. With pleasure, sir.
    Mr. King. With regard to the ranking of the United States 
by Amnesty International, could you inform this Committee as to 
what nation is ranked first and where the United States 
actually ranks in human rights?
    Mr. Conyers. I don't have it in this document. But if we 
were to have a hearing, I'd be happy to provide that 
information for you.
    But that's the point that I'm putting it in the record, so 
you can read it and find out where we are. I don't know that 
this is specifically----
    Mr. Chabot. Would the gentleman yield?
    Mr. King. I would yield.
    Mr. Chabot. Could I ask the gentleman a question also. I 
think your statement was, Mr. Conyers, that according to that 
article the United States has one of the worst human rights 
records in the world. Is that correct, that it says that?
    Mr. Conyers. Yes, sir.
    Mr. Chabot. Because I find that statement, if it's 
contained in that report, an absurdity. And I just can't 
believe that--I don't believe it. It's hard for me to 
comprehend that any organization, even Amnesty International, 
could make that statement.
    Do you believe that that statement is true, Mr. Conyers? 
And I have the utmost respect for you, so I think it's really a 
rather important issue.
    Mr. Conyers. Well, I do, too. That's why I'm trying to put 
it in the record. I mean, if it's incorrect, you read about it 
or I'll provide you with a copy----
    Mr. Chabot. Do you think it's correct, though, is my 
question.
    Mr. Conyers. Oh, yes. Of course. Everything I say I believe 
is correct.
    Mr. Chabot. So you believe that the United States is----
    Mr. Conyers. Has one of the worst records.
    Mr. Chabot.--has one of the worst records on human rights--
--
    Mr. Weiner. Reserving the right to object.
    Mr. Conyers. I've already answered you once, but I'll do it 
again.
    Mr. Chabot. Okay. I'm surprised, but if--I'm surprised that 
you would say that.
    Mr. Conyers. Absolutely.
    Mr. Weiner. Reserving the right to object.
    Mr. King. Reclaiming my time.
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Iowa, Mr. King.
    Mr. King. Mr. Chairman, I'd ask unanimous consent to 
introduce some other information into the record with regard to 
the United States record with regard----
    Chairman Sensenbrenner. Well, the pending UC request, which 
you've reserved the right to object to, is for Mr. Conyers to 
introduce the Amnesty International report to which he has 
referred into the record.
    Is there objection?
    Mr. King. Mr. Chairman, with regard to that lack----
    Chairman Sensenbrenner. The gentleman reserves the right to 
object.
    Mr. King. Mr. Chairman, I object.
    Mr. Lungren. Mr. Chairman, I object.
    Chairman Sensenbrenner. The objection is heard. Are there 
further amendments?
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Lofgren.
    Ms. Lofgren. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Ms. Lofgren. I would ask unanimous consent that the 
amendment be considered as read.
    Mr. Weiner. Mr. Chairman, a point of order.
    Chairman Sensenbrenner. The clerk will report----
    Mr. Weiner. Mr. Chairman, a point of order.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.J. Res. 10, offered by Ms. 
Lofgren of California. Page 2, line 8, insert at the beginning, 
``Section 1.''. Page 2, after line 9----
    Mr. Weiner. Mr. Chairman, point of order.
    Chairman Sensenbrenner. A point of order is reserved on the 
amendment. Without objection, the amendment is considered as 
read.
    [The amendment of Ms. Lofgren follows:]
    
    
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Lofgren----
    Mr. Weiner. Mr. Chairman, I have a point of order.
    Chairman Sensenbrenner.--will be recognized for 5 minutes.
    A point of order has been reserved. It has not been made. 
The gentlewoman from California, Ms. Lofgren, is recognized for 
5 minutes.
    Mr. Weiner. Mr. Chairman, I have a point of order.
    Chairman Sensenbrenner. The gentleman will state his point 
of order.
    Mr. Weiner. Mr. Chairman, my point of order is this. Does 
not the Ranking Member, if not authorized by unanimous consent 
to introduce materials into the record, is he not then 
permitted to do so by a simple vote of the Committee?
    Chairman Sensenbrenner. The parliamentarian is looking in 
the rules on that.
    Mr. Weiner. And if I could further on my point of order, 
you know, it is----
    Chairman Sensenbrenner. What I will tell the gentleman from 
New York is that gentleman from Michigan asked unanimous 
consent to insert material into the record. The gentleman from 
California, Mr. Lungren, objected. And as a result of the 
objection, the unanimous consent request of the gentleman from 
Michigan has failed.
    Mr. Weiner. This much I understand. My point of order 
revolves around the rights of every Member and the custom in 
this Committee to permit Members to put things into the record 
regardless of whether Members on either side agree with them. 
And the fact that it is customary at the end of a hearing for 
the Chairman to say, as a point of general proceedings, that 
Members have unanimous consent of five legislative days to 
insert material. And I believe that if that objection is 
upheld, then we have to consider it to be an objection at the 
end of the record as well, where you're----
    Chairman Sensenbrenner. Well, if the gentleman from New 
York will yield, we have never asked in this Committee general 
leave for Members to insert material into the record. And in 
fact, the House rules, what they do do is give every Member a 
right to file additional supplemental, minority, or dissenting 
views to bills that have been reported. And the chair makes 
that statement routinely on behalf of all Members following the 
reporting of a bill. But what is put into dissenting views is 
up to those who wish to submit the dissenting views, and one 
does not need unanimous consent in order to put dissenting 
views or supplemental views into the record.
    Mr. Weiner. I'm still waiting on the ruling on my point of 
order.
    Mr. Conyers. Would the gentleman yield?
    Mr. Weiner. I don't know if I have any time to yield, but 
certainly.
    Mr. Conyers. I thank you for yielding, because obviously, 
after your point of order, I'm going to make a motion that this 
record of Amnesty International be inserted in the record at 
this point.
    Chairman Sensenbrenner. The chair is prepared to rule on 
the point of order that has been raised by the gentleman from 
New York. The gentleman from Michigan, Mr. Conyers, should he 
wish, can make a motion to include the material from Amnesty 
International, or other material, into the record.
    Mr. Weiner. Thank you, Mr. Chairman.
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. Okay, we are now at recognizing the 
gentlewoman from California for 5 minutes. Since we do have two 
votes, the chair will recess the Committee until 1 o'clock. We 
have this bill and two other bills that we would like to get 
done today. The chair would implore Members to return promptly 
at 1 o'clock.
    The Committee stands recessed.
    [Whereupon, the Committee was recessed from 11:40 a.m until 
1:12 p.m.]
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    The gentleman from Michigan.
    Mr. Conyers. Mr. Chairman, I ask unanimous consent to 
include a report from Amnesty International in our proceedings 
in terms of the gun manufacturers and gun dealers, the bill 
before the Committee. And it deals with our human rights 
record.
    Chairman Sensenbrenner. Without objection.
    [The information follows:]
    
    
    Chairman Sensenbrenner. Pending when the Committee recessed 
was an amendment that was offered by the gentlewoman from 
California, Ms. Lofgren, on which the gentleman from Ohio, Mr. 
Chabot, had reserved a point of order. The amendment by the 
gentlewoman from California was considered as read and open for 
amendment at any point.
    The chair recognizes the gentlewoman from California for 5 
minutes.
    Ms. Lofgren. Thank you, Mr. Chairman.
    This, as Members have pointed out, is an amendment that has 
been considered by this Committee on numerous occasions. But I 
think all of us, especially after 9/11, have, if possible, an 
even stronger feeling about our nation's flag. And I think all 
of us, when we walk over to the Capitol, and for me especially 
at night, when you see our flag, it really does something to 
our hearts about what this country stands for and how committed 
each and every one of us is to our country and to the freedoms 
that our flag stands for.
    One of those freedoms is freedom of speech. And one of the 
things that has made our country strong and free is the 
proposition that Americans are free to express their opinions 
even when we don't agree with those opinions. And as has been 
mentioned by other Members, the amendment before us would be, 
if adopted, the first time that the first amendment to the 
Constitution of the United States had been altered by an 
amendment. I think that we would make a mistake to amend the 
first amendment. That's why our soldiers go off and fight for 
our country, to keep our freedoms down through the lines.
    But I think there's another reason why this amendment has 
been offered, and that's to divert attention from something 
that we can do something about, and that's making sure that our 
veterans get what they are entitled to for the efforts they 
have made for their country. My amendment would make sure that 
this article would not take effect until Congress, by law, 
ensures that the veterans benefits promised to an individual in 
connection with that individual's enlistment or induction in 
the armed services cannot, after that enlistment or induction, 
be diminished.
    Now, why is that important? Veterans are getting a raw deal 
today, and I think we all know it. In the Veterans Affairs 
Committee, the budget resolution we've adopted, the Veterans 
Committee is required to identify $155 million in benefit cuts 
in the next year, or $798 million in cuts to veterans benefits 
over the next 5 years. We know that while there was a small 
increase in some accounts, the need for care far exceeds what 
the Congress is providing. In fact, patient resources, without 
collections, have increased about 13 percent, but the number of 
patients has increased by 25 percent, leaving a 13 to 14 
percent gap. And maybe that's one of the reasons why, according 
to the American Legion, I believe, 30,000 veterans are waiting 
6 months or longer for an appoint at a veterans hospital. And 
the budget that we have adopted will not change that.
    Now, when we take a look at what the budget does, this 13 
to 14 percent gap in what we're funding and what veterans need 
also includes a co-payment that is going to double or triple 
what veterans are required to pay as a co-payment for their 
monthly supply of prescription drugs. And under the proposed 
budget, the Veterans of Foreign Wars estimates that as many as 
220,000 men and women veterans could lose benefits. In fact, 
the American Legion's national commander said this: No active-
duty servicemember in harm's way should ever have to question 
the Nation's commitment to veterans. This is the wrong message 
at the wrong time to the wrong constituency.
    And Thomas Corey, the national president of the Vietnam 
Veterans of America, said, and I quote: It does a disservice to 
those who donned the uniform to defend the rights, the 
principles and freedoms that we hold dear.
    Last year, in a budget that was actually better than the 
one this year, then-VFW Commander Edward Banas, Sr. complained 
the funding package is a disgrace and a sham. To ask this 
Nation's veterans to subsidize their health care is outrageous. 
They have already paid for health care with their sweat and 
their blood.
    I believe that symbols are important. But action--action to 
make sure that the veterans, the men and women who join and put 
their lives on the line; action to make sure that they get what 
they deserve--is what this Congress ought to do.
    I strongly urge the Committee to adopt this amendment.
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired. Does the gentleman from Ohio, Mr. Chabot, insist on 
his point of order?
    Mr. Chabot. The gentleman will state his point of order.
    Mr. Chabot. Mr. Chairman, I make a point of order that the 
amendment is not germane under House rules, as it does not 
relate to the underlying purpose of the resolution and attaches 
additional criteria to the ratification process. In addition, I 
would note that it's further not germane because the substance 
of the amendment is not within the jurisdiction of this 
Committee, but rather is within the jurisdiction of the 
Veterans Affairs Committee.
    I yield back.
    Ms. Lofgren. On the point of order, Mr. Chairman.
    Chairman Sensenbrenner. The gentlewoman from California.
    Ms. Lofgren. I very much disagree. This Committee has 
exclusive jurisdiction over constitutional amendments. A 
constitutional amendment to provide that veterans of this 
country should get what they were promised by way of health 
care and benefits would not go to the Veterans Affairs 
Committee. All constitutional amendments go to the House 
Judiciary Committee. So I would urge that we adopt this 
amendment to the amendment and that we not duck this issue. 
This is important and we need to vote to adopt it and to move 
forward.
    So I strongly believe that this is both germane and 
certainly more than appropriate.
    I yield back.
    Chairman Sensenbrenner. The chair is prepared to rule. The 
gentleman from Ohio has made a point of order in which he 
argues that the amendment is not germane, one, because it deals 
with a different issue than the underlying bill, and secondly 
that, if it was a stand-alone provision, it would not be in the 
jurisdiction of the Committee.
    The chair agrees with the gentlewoman from California and 
disagrees with the gentleman from Ohio on the second point. All 
constitutional amendments are within the jurisdiction of the 
Judiciary Committee irrespective of subject. However, the chair 
agrees with the gentleman from Ohio that the amendment is not 
germane for the first part of his argument, in that it deals 
with a different topic than the underlying joint resolution.
    Therefore, the chair sustains the point of order of the 
gentleman from Ohio.
    Are there further amendments?
    Ms. Lofgren. Mr. Chairman, I challenge the chair's ruling.
    Chairman Sensenbrenner. The gentlewoman from California 
appeals the decision of the chair. The gentleman from North 
Carolina moves to table the appeal.
    Those in favor of tabling the appeal of the decision of the 
chair will, as your names are called, answer aye; those 
opposed, no. The clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Lungren?
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, aye. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    [No response.]
    The Clerk. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    [No response.]
    The Clerk. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye. Mr. Gohmert?
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    [No response.]
    The Clerk. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? The gentleman from Virginia, Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Chairman Sensenbrenner. The gentleman from Wisconsin, Mr. 
Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 17 ayes and 9 noes.
    Chairman Sensenbrenner. And the motion to table the appeal 
from the decision of the chair is agreed to.
    Are there further amendments?
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Lofgren.
    Ms. Lofgren. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.J. Res. 10, offered by Ms. 
Lofgren of California. Page 2, strike lines 8 and 9, and insert 
the following: Every flag of the United States manufactured in 
or imported into the United States after the effective date of 
this amendment must be manufactured out of flame-resistant 
material.
    Amend the title so as to read, ``Joint Resolution Proposing 
an Amendment to the Constitution of the United States Requiring 
Every Flag of the United States to be Manufactured Out of 
Flame-Resistant Material.''
    Chairman Sensenbrenner. The gentlewoman from California is 
recognized for 5 minutes.
    [The amendment follows:]
    
    
    Ms. Lofgren. Mr. Chairman, this is actually the other side 
of the coin of Mr. Scott's amendment. As I said in the 
discussion of the prior amendment, who loves our flag is not 
the question here today. I love our flag. And I am sure that 
the proponents of the constitutional amendment love our flag. 
The question is how to protect our Constitution, and can we 
also do something to protect the symbol of freedom that our 
flag is.
    As many of you know from my efforts on the Intellectual 
Property Subcommittee, I am a person who believes in 
technology. And I believe that when there are technological 
measures that can be taken that disturb in no way the freedoms 
that we have, that that is a better remedy than going about 
amending the first amendment to the Constitution.
    Now, I don't want to see people burning our flag. And if 
this amendment were passed, that would not be possible. Our 
flag could not be burned. And I would like to see that because 
it really burns me up and makes me mad to see people who would 
abuse our flag and burn our flag. So I think this is a much 
better approach to preventing that kind of misbehavior while 
still making sure that we do nothing to disturb the first 
amendment to the Constitution. And after all, as Mr. Scott 
pointed out in his earlier amendment in the morning, what we're 
talking about is the content of action, not the action itself.
    So I don't want to unduly prolong this debate. I think this 
is meritorious.
    Mr. Gallegly. Would the gentlelady yield?
    Ms. Lofgren. I would yield, Mr. Gallegly.
    Mr. Gallegly. I appreciate the spirit in which you have 
introduced this amendment. But the amendment that you are 
talking about has to do with desecrating the flag. And 
obviously, as much as I'm appalled by anyone that would burn 
the flag, I'm equally as appalled at anyone that would 
desecrate the flag in other ways. So I think that the real 
issue here is desecrating the flag, not only the terrible act 
of burning the flag. So I----
    Ms. Lofgren. Reclaiming my time. If the gentleman is 
offering a friendly amendment to the amendment that would add 
making the flag stain-resistant, I would accept that friendly 
amendment.
    Mr. Gallegly. If the gentlelady would further yield, would 
you agree to make it a capital offense in the case that someone 
decided to----
    Ms. Lofgren. That would be up to Congress in later----
    Mr. Gallegly. I would yield back.
    Ms. Lofgren. I actually retain the time. This is a 
constitutional amendment that would be part of the enabling 
legislation. I would say, as the Member probably knows, I am 
not an opponent of the death penalty in every case and I have 
voted for the death penalty in appropriate cases. Whether this 
would be such a case is something that we should have hearings 
on.
    Unless there is further discussion, I would yield back.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentlewoman from California. Those in favor will 
say aye; opposed, no.
    The chair believes the noes have it. The noes have it and 
the amendment is not agreed to.
    Are there further amendments?
    If there are no further amendments, a reporting quorum is 
present. The question occurs on the motion to report H.J. Res. 
10 favorably. All in favor will say aye; opposed, no.
    The ayes appear to have it.
    Mr. Conyers. Record vote.
    Chairman Sensenbrenner. A record vote is requested. Those 
in favor of the motion to report H.J. Res. 10 favorably will, 
as your names are called, answer aye; those opposed, no. The 
clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Lungren?
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    Mr. Inglis. Aye.
    The Clerk. Mr. Inglis, aye. Mr. Hostettler?
    [No response.]
    The Clerk. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    [No response.]
    The Clerk. Mr. Forbes?
    [No response.]
    The Clerk. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Feeney?
    [No response.]
    The Clerk. Mr. Franks?
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye. Mr. Gohmert?
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    [No response.]
    The Clerk. Mr. Schiff?
    [No response.]
    The Clerk. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there further Members who wish 
to cast or change their vote? The gentleman from New York, Mr. 
Weiner?
    Mr. Weiner. How am I recorded?
    The Clerk. Mr. Chairman, Mr. Weiner is not recorded.
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye.
    Chairman Sensenbrenner. The gentleman from Alabama, Mr. 
Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 17 ayes and 9 noes.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to. Without objection, the staff is directed to make 
any technical and conforming changes and all Members will be 
given 2 days, as provided by the House rules, and wish to 
submit additional dissenting, supplemental, or minority views.
    [Intervening business.]
    Chairman Sensenbrenner. The Chair would like to thank the 
Members and staff for their patience. We have completed a very 
ambitious agenda today. There will be no markup tomorrow 
because the agenda has been completed, and the Committee stands 
adjourned.
    [Whereupon, at 3:43 p.m., the Committee was adjourned.]

                            Additional Views

    The American flag serves a unique role as the symbol of our 
country's values and the embodiment of the rights guaranteed to 
all Americans under the United States Constitution--the supreme 
law of the land and the ultimate guardian of human rights in 
the United States. The protection of fundamental human rights 
was central to the purpose of our founding document, which 
serves as the longest-enduring written charter of government 
and a model of self-governance that has inspired the world. The 
United States stands as a bulwark against the tyranny that has 
marred human history, and as a beacon that inspires other 
peoples and nations. America is a catalyst for human freedom 
and liberty. In World War II, America's soldiers liberated 
millions and restored light to a darkened continent. During the 
Cold War, the United States gave voice to millions who aspired 
toward human dignity, freedom and liberty. Today, the struggle 
for freedom continues, and the United States continues to lead 
the effort to advance this noble cause. The United States 
Constitution has inspired and served as a model for numerous 
national constitutions and international (and regional) human 
rights norms.\1\
---------------------------------------------------------------------------
    \1\ Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher, & David 
W. Leebron, Human Rights 119 (Foundation Press 1999).
---------------------------------------------------------------------------
    Despite this fact, at the Committee on the Judiciary's 
markup of H.J. Res. 10, the ``Flag Protection Amendment,'' 
Ranking Member Conyers stated, ``Amnesty International has said 
that we have one of the worst human rights records in the 
world.'' Mr. Chabot, Chairman of the House Constitution 
Subcommittee, asked for clarification, stating, ``I think your 
statement was, Mr. Conyers, that according to that article the 
United States has one of the worst human rights records in the 
world.'' Mr. Chabot then asked Ranking Member Conyers, ``Do you 
think it's correct[?]'' to which Ranking Member Conyers 
replied, ``Oh yes. Of course. Everything I say I believe is 
correct.'' Mr. Chabot then repeated the question, asking if 
Ranking Member Conyers believed that the United States has one 
of the worst human rights records in the world. Ranking Member 
Conyers stated, ``Absolutely.'' Ranking Member Conyers was 
referring to Amnesty International Report 2005.\2\ Amnesty 
International, however, does not ``presume[] to rank 
governments or countries, nor desire[] to single out any regime 
or group of regimes as `the worst on earth.' '' \3\
---------------------------------------------------------------------------
    \2\ See http://web.amnesty.org/library/Index/ENGPOL100012005 
(Amnesty International Report 2005).
    \3\ Http://nobelprize.org/peace/laureates/1977/amnesty-lecture.html 
(Amnesty International--Nobel Lecture).
---------------------------------------------------------------------------
    In sharp contrast to Ranking Member Conyers' belief, 
Freedom House, a widely-respected, non-partisan, and broadly-
based non-profit organization, consistently rates the United 
States in its Freedom in the World survey in the ``most free'' 
category. The United States also receives the highest rating in 
its commitment to respecting political rights and civil 
liberties.\4\ The survey rates the rights and freedoms enjoyed 
by individuals and does not equate constitutional guarantees of 
human rights with the actual realization of these rights by 
citizens of countries it ranks.\5\ Both laws and actual 
practices are factored into the rating decisions.\6\ According 
to the survey, political rights enable people to participate 
freely in the political process, including the right to vote, 
compete for public office, and elect representatives who have a 
decisive impact on public policies and are accountable to the 
electorate.\7\ Civil liberties allow for the freedoms of 
expression and belief, associational and organizational rights, 
rule of law, and personal autonomy without interference from 
the state.\8\ The rule of law analysis encompasses the degree 
to which a country provides protection from police terror, 
unjustified imprisonment, exile, or torture.\9\ The survey 
rates countries on both political rights and civil liberties, 
rating them on a scale of 1 to 7 with 1 representing the most 
free and 7 the least free.\10\ The United States consistently 
receives a rating of 1 on both political rights and civil 
liberties.\11\
---------------------------------------------------------------------------
    \4\ See http://www.freedomhouse.org/ratings/allscore04.xls (Freedom 
in the World Country Ratings 1972-2003).
    \5\ Http://www.freedomhouse.org/research/freeworld/2004/
methodology.htm (Freedom in the World 2004: Survey Methodology).
    \6\ Id.
    \7\ Id.
    \8\ Id.
    \9\ Id.
    \10\ See http://www.freedomhouse.org/research/freeworld/2005/
table2005.pdf (Freedom in the World 2005 Table of Independent Countries 
Comparative Measures of Freedom).
    \11\ See http://www.freedomhouse.org/ratings/allscore04.xls 
(Freedom in the World Country Ratings 1972-2003).
---------------------------------------------------------------------------
    According to Louis Henkin, a highly respected and often-
cited professor of human rights law:

        The United States has the oldest continuing commitment 
        to ``constitutionalism,'' including a commitment to 
        individual rights and to the bill of rights as supreme 
        constitutional law. It also has a long--perhaps the 
        longest--history of constitutional government, 
        including institutions to monitor and enforce respect 
        for human rights. The international human rights 
        movement, born during the Second World War, owes much 
        to the example of the United States, and U.S. 
        constitutional rights have been a principal source for 
        international human rights law and a principal model 
        for constitutional rights in the many new constitutions 
        of old and new countries in the second half of the 
        Twentieth Century.\12\
---------------------------------------------------------------------------
    \12\ Henkin, supra note 1, at 119.

    There is a broad, bipartisan, and long-standing consensus 
in the United States that the protection of human rights helps 
secure peace, deter aggression, promote the rule of law, combat 
crime and corruption, strengthen democracies, and prevent 
humanitarian crises.\13\ Consequently, a central goal of U.S. 
foreign policy has been the promotion of respect of human 
rights. The United States Department of State Bureau of 
Democracy, Human Rights, and Labor compiles a 5,000 page annual 
report regarding the status of internationally-recognized human 
rights, which it transmits to Congress.\14\ As this report 
indicates, the United States' commitment to human rights 
extends beyond her own citizens to those of other countries. 
This commitment has most recently been manifested in America's 
liberation of Afghanistan and Iraq from totalitarian regimes. 
The struggle for human liberty continues on other fronts, and 
America will continue to lead this fight.
---------------------------------------------------------------------------
    \13\ See http://www.state.gov/g/drl/hr/ (U.S. Department of State 
Bureau of Democracy, Human Rights, and Labor: Human Rights).
    \14\ See http://www.state.gov/g/drl/rls/hrrpt/2004/index.htm (U.S. 
Department of State Bureau of Democracy, Human Rights, and Labor: Human 
Rights).
---------------------------------------------------------------------------
    The American flag symbolizes America's enduring commitment 
to these values and merits protection from desecration. The 
flag has united America in times of crisis and continues to 
serve as an international symbol of freedom to those who must 
have it. As he had throughout his political life, in his 
Farewell Address, President Reagan evoked an image of America 
as a ``shining city upon a hill'' that has inspired the hopes 
and aspirations of all of mankind. Near the end of his address, 
President Reagan asked, ``And how stands the city on this 
winter night?'' He then answered by stating: ``After 200 years, 
two centuries, she still stands strong and true on the granite 
ridge, and her glow has held steady no matter what storm. And 
she's still a beacon, still a magnet for all who must have 
freedom, for all the pilgrims from all the lost places who are 
hurtling through the darkness toward home.''
    This is the America that the signatories below saw then, 
and see still.

                                   F. James Sensenbrenner, Jr.
                                   Lamar Smith.
                                   Elton Gallegly.
                                   Steve Chabot.
                                   Daniel E. Lungren.
                                   William L. Jenkins.
                                   Chris Cannon.
                                   Bob Inglis.
                                   John N. Hostettler.
                                   Mark Green.
                                   Ric Keller.
                                   Darrell Issa.
                                   Mike Pence.
                                   J. Randy Forbes.
                                   Steve King.

                            Dissenting Views

    H.J. Res. 10, the so-called ``Flag Protection Amendment,'' 
would mark the first time in our nation's history that the 
Constitution has ever been amended in order to curtail an 
existing right. In this instance, the proposed amendment would 
narrow the scope of the First Amendment's protection of free 
expression by allowing Congress to enact legislation 
prohibiting ``physical desecration'' of the flag of the United 
States. This dangerous and unnecessary assault on our 
fundamental liberties would set a terrible precedent. For the 
reasons set out below, we respectfully dissent.

                               BACKGROUND

    This Constitutional amendment is a response to a pair of 
Supreme Court decisions, Texas v. Johnson, 491 U.S. 397 (1989) 
and United States v. Eichman, 496 U.S. 310 (1990), in which the 
Court held that state and Federal Government efforts to 
prohibit physical ``desecration'' of the flag by statute were 
content-based political speech restrictions and imposed 
unconstitutional limitations on that speech.\1\
---------------------------------------------------------------------------
    \1\ The proposed amendment reads, in its relevant part, ``The 
Congress shall have power to prohibit the physical desecration of the 
flag of the United States.'' H.J. Res. 10 109th Cong. (2005).
---------------------------------------------------------------------------
    The first flag desecration statutes originated in the 
States in the late 19th century after supporters failed to 
obtain Federal legislation prohibiting commercial or political 
``misuse'' of the flag. During the period between 1897 and 
1932, flag desecration statutes were enacted in every state. 
These statutes outlawed the use of the flag for a number of 
purposes, including commercial advertising, marking the flag 
for political, commercial or other purposes, or publicly 
mutilating, trampling, defacing, defiling or casting contempt, 
by words or action, upon the flag.\2\
---------------------------------------------------------------------------
    \2\ Most of these statutes were eventually struck down as 
unconstitutional in a series of lower court decisions, usually on the 
grounds of vagueness.
---------------------------------------------------------------------------
    Congress remained relatively silent on the issue throughout 
that period, approving the first Federal flag desecration law 
in 1968 in the aftermath of a highly publicized Central Park 
flag burning incident in protest against the Vietnam War. The 
1968 Federal law made it illegal to ``knowingly'' cast 
``contempt'' upon ``any flag of the United States by publicly 
mutilating, defacing, defiling, burning, or trampling upon 
it.'' \3\ The law imposed a penalty of up to $1,000 in fines 
and/or 1 year in prison.
---------------------------------------------------------------------------
    \3\ Pub. L. 90-381, Sec. 1, 82 Stat. 291 (1989) (18 U.S.C. 700).
---------------------------------------------------------------------------
    Shortly after passage of the 1968 law, the Supreme Court 
considered three notable cases concerning the flag; however, 
none of these decisions directly addressed the flag burning 
issue. In Street v. New York,\4\ the Court ruled that New York 
could not convict a person for making verbal remarks 
disparaging the flag. In 1972, the Court ruled in Smith v. 
Goguen,\5\ that Massachusetts could not prosecute a person for 
wearing a small cloth replica of the flag on the seat of his 
pants based on a state law making it a crime to publicly treat 
the U.S. flag with ``contempt.'' The Court ruled that the law 
was unconstitutionally vague. In Spence v. Washington,\6\ the 
Court overturned a Washington state ``improper use'' flag law, 
which, among other things, barred placing any marks or designs 
upon the flag or displaying such altered flags in public view. 
These decisions intimated, but did not expressly hold, that 
flag burning for political purposes constituted protected 
activity under the First Amendment.
---------------------------------------------------------------------------
    \4\ 394 U.S. 576 (1969).
    \5\ 415 U.S. 566 (1974).
    \6\ 418 U.S. 405 (1974).
---------------------------------------------------------------------------
    In 1989, the Supreme Court addressed directly whether a 
flag burning statute violates the First Amendment in Texas v. 
Johnson.\7\ The Court determined that the First Amendment 
protects those citizens who burn the U.S. flag in political 
protest from prosecution. In that case, Gregory Johnson was 
arrested for burning the U.S. flag in violation of Texas' 
``Venerated Objects'' law \8\ during a demonstration outside of 
the Republican National Convention in Dallas. The Texas statute 
outlawed ``intentionally or knowingly'' desecrating a 
``national flag.'' According to the statute, the term 
``desecrate'' was defined to mean ``to deface, damage or 
otherwise physically mistreat in a way that the actor knows 
will seriously offend one or more persons likely to observe or 
discover his action.'' \9\ The Court of Appeals for the Fifth 
District of Texas upheld Johnson's conviction.\10\ Texas' 
highest criminal court, the Court of Criminal Appeals, reversed 
the lower court decision, holding that the Texas law had been 
unconstitutionally applied to Johnson in violation of his First 
Amendment rights.\11\
---------------------------------------------------------------------------
    \7\ 491 U.S. 397 (1989).
    \8\ Tex. Penal Code Ann. Sec. 42.09(a)(3) (1989).
    \9\ Tex. Penal Code Ann. Sec. 42.09(b) (1989).
    \10\ 706 S.W. 2d 120 (1986).
    \11\ 755 S.W. 2d 92 (1988).
---------------------------------------------------------------------------
    The Supreme Court affirmed the Texas Court of Criminal 
Appeals ruling. The Court found that Johnson's conduct 
constituted symbolic expression which was both intentional and 
overtly apparent. The Court determined that, since Johnson's 
guilt depended on the communicative aspect of his expressive 
conduct, and was restricted because of the content of the 
message he conveyed, the Texas statute was ``content-based'' 
and subject to ``the most exacting scrutiny test'' outlined in 
Boos v. Barry.\12\ Further, the Court stated that, although the 
government has an interest in encouraging proper treatment of 
the flag, it may not criminally punish a person for burning a 
flag as a means of political protest.\13\ The Court determined 
that the Texas statute was designed to prevent citizens from 
conveying ``harmful'' messages, reflecting a government 
interest that violated the First Amendment principle that 
government may not prohibit expression of an idea simply 
because it finds the idea itself offensive or disagreeable.\14\
---------------------------------------------------------------------------
    \12\ 485 U.S. 312 (1988).
    \13\ The Court ruled that Texas' proffered interest of preventing 
breaches of the peace was not implicated and that its interest in 
preserving the flag as a symbol of nationhood and national unity was 
related to the suppression of expression.
    \14\ Certain uses of the flag are misdemeanors under 4 U.S.C. 3, 
punishable by a fine of not more than $100 or imprisonment of not more 
than thirty days or both. Acts criminalized under existing Federal law 
include: using the flag in ``advertising of any nature,'' or any person 
who ``shall manufacture, sell expose for sale, or to pubic view, or 
give away or use for an purpose, any article or substance being an 
article of merchandise or a receptacle for merchandise or article or 
thing for carrying or transporting merchandise, upon which shall have 
been printed, painted, attached or otherwise placed a presentation of 
any such flag, standard, colors, or ensign, to advertise, call 
attention to, decorate, mark, or distinguish the article or substance 
on which so placed. . . .'' Although not enforceable under current 
precedents, these restrictions would become fully enforceable against 
businesses, individuals and any Member of Congress using the flag in a 
campaign ad, should the amendment be ratified. A formal representation 
of the exact flag is not required. The existing statute includes in the 
definition of ``flag,'' ``any picture or representation of either, or 
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 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. . 
. .''
---------------------------------------------------------------------------
    In response to the Johnson ruling, Congress took steps to 
amend the 1968 statute to make it ``content neutral'' by 
passing the ``Flag Protection Act of 1989.'' \15\ The Act 
prohibited flag desecration under all circumstances by removing 
the statutory requirement that the conduct cast contempt upon 
the flag. The statute also defined the term ``flag'' in an 
effort to avoid any latent First Amendment vagueness 
problems.\16\ Following passage of the Act, a wave of the flag 
burnings took place in over a dozen cities. The first Bush 
administration decided to test the Flag Protection Act by 
bringing criminal charges against protesters who participated 
in two incidents, one in Seattle and the other in Washington, 
DC \17\ In both cases, the Federal district courts relied on 
Johnson, striking down the 1989 law as unconstitutional when 
applied to political protesters.
---------------------------------------------------------------------------
    \15\ Pub. L. No. 101-131 (1989).
    \16\ The Flag Protection Act of 1989 defined ``flag'' as ``any flag 
of the United States, or any part thereof, make of any substance, of 
any size, in a form that is commonly displayed.'' 18 U.S.C. 700.
    \17\ The Washington, DC, protest occurred on the steps of the 
Capitol.
---------------------------------------------------------------------------
    The Supreme Court accepted jurisdiction of these cases 
(consolidated as U.S. v. Eichman, 496 U.S. 310 (1990)) and, in 
a 5-4 decision, upheld the lower Federal court rulings and 
struck down the Flag Protection Act of 1989.\18\ Again, the 
Court ruled that the government's stated interest in protecting 
the status of the flag ``as a symbol of our Nation and certain 
national ideals'' was related to ``the suppression of free 
expression'' that gave rise to an infringement of First 
Amendment rights. The Court acknowledged that the 1989 law, 
unlike the Texas statute in Johnson, contained no content-based 
limitations on the scope of protected conduct. However, the 
Court determined, the Federal statute was subject to strict 
scrutiny because it could not be enforced without reference to 
the message of the ``speaker.''
---------------------------------------------------------------------------
    \18\ U.S. v. Eichman, 496 U.S. 310 (1990) (consolidating No. 89-
1433, U.S. v. Eichman, 731 F.Supp. 1123 (D.D.C. 1990), and U.S. v. 
Haggerty, 731 F.Supp. (W.D.WA. 1990)).
---------------------------------------------------------------------------
    Since the Eichman decision, Congress repeatedly considered 
and rejected a proposed Constitutional amendment specifying 
that ``the Congress and the states have the power to prohibit 
the physical desecration of the flag of the United States.''

               I. THE AMENDMENT WAS NOT SUBJECT TO EVEN 
                           PRO FORMA HEARINGS

    Historically, Congress has treated the Constitutional 
amendment process as a remedy of last resort. Although numerous 
amendments to the Constitution have been proposed, it has been 
a power used rarely and with great care. Over more than 200 
years, our Constitution has been amended only 27 times. If 
ratified, H.J. Res. 10 would, for the first time in our 
Nation's history, modify the Bill of Rights to limit freedom of 
expression.
    Notwithstanding the gravity of the issue, the majority has 
decided that this unprecedented departure from our nation's 
constitutional heritage does not even merit the otherwise pro 
forma hearings that have become the rule since the 107th 
Congress.
    The Committee did not hold a single hearing on this 
momentous question. The Subcommittee on the Constitution held 
neither a hearing nor a markup. This reckless disregard for the 
future of our Bill of Rights is nothing less that a complete 
abdication of the Committee's core duty under Rule X of the 
Rules of the House, and the oath every member takes on assuming 
office to ``support and defend the Constitution of the United 
States against all enemies, foreign and domestic; [to] bear 
true faith and allegiance to the same . . . and [to] well and 
faithfully discharge the duties of the office on which I am 
about to enter. . . .'' \19\
---------------------------------------------------------------------------
    \19\ 5 U.S.C. 3331.
---------------------------------------------------------------------------
    In an effort to give the Committee the opportunity of at 
least one hearing on this momentous issue, Mr. Conyers made a 
motion to postpone further consideration of the proposed 
amendment until June 15, 2005. Due to an erroneous ruling by 
the Committee's Parliamentarian, the Chairman called a vote of 
the Committee without debate on the motion. The motion was 
defeated on a party line vote of 12 Ayes and 20 Nays. Mr. 
Nadler then offered a motion to postpone further consideration 
until June 16, 2005. Following debate, the motion was defeated 
on a party line vote of 11 Ayes and 19 Nays.
    We believe that it is irresponsible to amend the Bill of 
Rights without a hearing, even if, as the Chairman believes, 
``having a hearing on this amendment will simply have everybody 
validating the arguments that have been made both pro and con 
in hearings that have been held before the subcommittee in 
previous Congresses. If there were new arguments, I'd like to 
hear them. But since there aren't, we don't need to have 
another hearing.'' \20\ We do not share the Chairman's 
confidence that there is nothing to learn from a hearing. It is 
our job to approach important questions with open minds and 
seek information, not to shun it. It is certainly inappropriate 
for the majority to prejudge a question of this importance.
---------------------------------------------------------------------------
    \20\ H.Rpt. No. 109-___ at ___ (2005)(Statement of Rep. F. James 
Sensenbrenner).
---------------------------------------------------------------------------
    In fact, the Committee received numerous written comments 
in opposition to the proposed amendment. These comments were 
made a part of the record during the markup. We sincerely doubt 
any member had the opportunity to review, much less consider, 
these helpful comments before voting.\21\
---------------------------------------------------------------------------
    \21\ Letter from Gregory T. Nojeim, Acting Director, and Terri A. 
Schroeder, Senior Lobbyist, American Civil Liberties Union, to Members 
of the U.S. House of Representatives (May 23, 2005); Letter from Gary 
E. May, Veterans Defending the Bill of Rights, to Members of the U.S. 
House of Representatives (May 24, 2005); Letter from Veterans for 
Common Sense, to Members of the U.S. House of Representatives (May 24, 
2005); Letter from former Captain Jeremy Broussard (U.S. Army) to Rep. 
F. James Sensenbrenner, Jr., and Rep. John Conyers, Jr. (May 24, 2005); 
Letter from Maj. Robert A. Cordes (USAF, Ret.) to Members of the U.S. 
Senate (March 10, 2004); Letter from Bruce Fein, Esq. to Sen. Orrin 
Hatch and Sen. Patrick Leahy (June 7, 2004); Letter from Lt. Gen. 
Robert G. Gard, Jr. (U.S. Army, Ret.) to Sen. Orrin Hatch and Sen. 
Patrick Leahy (March 8, 2004); Letter from William C. Ragsdale (U.S. 
Navy, Ret.) to Sen. Orrin Hatch and Sen. Patrick Leahy (March 10, 
2004); Letter from Steven E. Sanderson (U.S. Army veteran) to Members 
of the Senate Committee on the Judiciary (March 8, 2004); Letter from 
Lt. Gen. Claudia J. Kennedy (USA, Ret.) to Rep. F. James Sensenbrenner, 
Jr., and Rep. John Conyers, Jr. (May 24, 2005).
---------------------------------------------------------------------------

        II. THE PROPOSED AMENDMENT WOULD ABRIDGE FREE EXPRESSION

    Proponents of the amendment argue that desecration of the 
flag should not be considered speech within the meaning of 
First Amendment. Yet it is precisely the expressive content of 
acts involving the flag that the amendment would target. 
Indeed, it appears that proponents of the amendment sometimes 
wish to have it both ways. For example, an amendment offered by 
Rep. Scott replacing the word ``desecration'' with the word 
``burning'' was rejected precisely because it would have 
prohibited the destruction of a flag in a purely content 
neutral manner.\22\ As Chairman Chabot observed:
---------------------------------------------------------------------------
    \22\ The term ``desecration'' itself is highly revealing. Webster's 
New World Dictionary defines ``desecrate'' as ``to violate the 
sacredness of,'' and in turn defines ``sacred'' as ``consecrated to a 
god or God; holy; or having to do with religion.'' Proponents of the 
amendment use similar language in defending the proposal.

        Limiting the amendment to only the burning of the flag 
        rather than desecration would unduly limit the object 
        and purpose of this resolution to give Congress the 
        power to protect the flag from a range of physical acts 
        of defilement or defacement. The word ``desecration'' 
        was selected to give Congress the power to protect the 
        flag from a range of physical acts of defilement or 
        defacement. The word ``desecration'' was selected 
        because of its broad nature encompassing many actions 
        against the flag.\23\
---------------------------------------------------------------------------
    \23\ H.Rpt. No. 109-___ at ___ (2005) (statement of Rep. Chabot).

    That the criminal sanctions against flag burning in the 
Johnson case, and the ones the sponsors of this amendment would 
presumably seek to enact upon its adoption, are directly 
related to the expressive content of the act are clear. Current 
law prescribes that ``[t]he flag, when it is in such condition 
that it is no longer a fitting emblem for display, should be 
destroyed in a dignified way, preferably by burning.'' \24\ It 
is clear then, that prohibitions against flag burning or 
``physical desecration'' are fundamentally content-based. 
Burning a flag to demonstrate respect or patriotism is 
prescribed by current law. Should the proposed amendment pass, 
burning the flag to convey a political viewpoint of dissent or 
anger at the United States would become a crime.
---------------------------------------------------------------------------
    \24\ 4 U.S.C. 8(k).
---------------------------------------------------------------------------
    The Framers of the Constitution saw dissent and its 
protection as an affirmative social good.\25\ Limits on the 
manner of form of dissent must inevitably translate into limits 
on the content of the dissent itself. Limitations on the use of 
the flag in political demonstrations ultimately undermines the 
freedoms the flag represents.
---------------------------------------------------------------------------
    \25\ ``[T]hose who are resentful because their interests are not 
accorded fair weight, and who may be doubly resentful because they have 
not even had a chance to present those interests, may seek to attain by 
radical changes in existing institutions what they have failed to get 
from the institutions themselves. Thus liberty of expression, though 
often productive of divisiveness, may contribute to social stability.'' 
Kent Greenwalt, Speech and Crime, Am. B. Found. Res. J. 645, 672-3 
(1980).
---------------------------------------------------------------------------
    There can be no doubt that ``symbolic speech'' relating to 
the flag falls squarely within the ambit of traditionally 
protected speech. Our nation was borne in the dramatic symbolic 
speech of the Boston Tea Party. Moreover, our courts have long 
recognized that expressive speech associated with the flag is 
protected speech under the First Amendment.
    Beginning in 1931 with Stromberg v. California \26\ and 
continuing through the mid-1970's with Smith v. Goguen \27\ and 
Spence v. Washington, \28\ the Supreme Court has consistently 
recognized that flag-related expression is entitled to 
constitutional protection. Indeed, by the time Gregory Johnson 
was prosecuted for burning a U.S. flag outside of the 
Republican Convention in Dallas, the State of Texas readily 
acknowledged that Johnson's conduct constituted ``symbolic 
speech'' subject to protection under the First Amendment.\29\ 
Those who seek to justify H.J. Res. 10 on the grounds that flag 
desecration does not constitute ``speech'' are therefore 
denying decades of well understood law.\30\
---------------------------------------------------------------------------
    \26\ 283 U.S. 359 (1931) (State statute prohibiting the display of 
a `red flag' overturned). Absent this decision, a State could 
theoretically have prevented its citizens from displaying the U.S. 
flag.
    \27\ 415 U.S. 94 (1972).
    \28\ 418 U.S. 405 (1974) (overturning convictions involving wearing 
a flag patch and attaching a peace sign to a flag).
    \29\ Texas v. Johnson, 491 U.S. at 397.
    \30\ See also, Note, The Supreme Court--Leading Cases, 103 Harv. L. 
Rev. 137, 152 (1989) (``the majority opinion [in Johnson] is a 
relatively straightforward application of traditional first amendment 
jurisprudence''); Sheldon H. Nahmod, The Sacred Flag and the First 
Amendment, 66 Ind. L.J. 511, 547 (1991) (``Johnson is an easy case if 
well-established first amendment principles are applied to it''). 
Survey results show that the majority of Americans who initially 
indicate support for a flag protection amendment oppose it once they 
understand its impact on the Bill of Rights. In a 1995 Peter Hart poll, 
64 percent of registered voters surveyed said they were in favor of 
such an amendment, but when asked if they would oppose or favor such an 
amendment if they knew it would be the first in our Nation's history to 
restrict freedom of speech and freedom of political protest, support 
plummeted from 64 percent to 38 percent.
---------------------------------------------------------------------------
    While we deplore the burning of an American flag in hatred, 
we recognize that it is our allowance of this conduct that 
reinforces the strength of the Constitution. As one Federal 
court wrote in a 1974 flag burning case, ``[T]he flag and that 
which it symbolizes is dear to us, but not so cherished as 
those high moral, legal, and ethical precepts which our 
Constitution teaches.'' \31\
---------------------------------------------------------------------------
    \31\ U.S. ex rel Radich v. Criminal Court of N.Y., 385 F. Supp. 
165, 184 (1974).
---------------------------------------------------------------------------
    The genius of the Constitution lies in its indifference to 
a particular individual's cause. The fact that flag burners are 
able to take refuge in the First Amendment means that every 
citizen can be assured that the Bill of Rights will be 
available to protect his or her rights and liberties should the 
need arise.
    H.J. Res. 10 will also open the door to selective 
prosecution based purely on political beliefs. When John Peter 
Zenger was charged with ``seditious libel'' in the very first 
case involving freedom of speech on American soil, his lawyer, 
James Alexander warned:

        The abuses of freedom of speech are the excrescences of 
        Liberty. They ought to be suppressed; but whom dare we 
        commit the care of doing it? An evil Magistrate, 
        entrusted with power to punish Words, is armed with a 
        Weapon the most destructive and terrible. Under the 
        pretense of pruning the exuberant branches, he 
        frequently destroys the tree.\32\
---------------------------------------------------------------------------
    \32\ Philadelphia Gazette, Nov. 17, 1737, quoted in Levy, Legacy of 
Suppression 135 (1960).

    The history of the prosecution of flag desecration in this 
country bears out these very warnings. The overwhelming 
majority of flag desecration cases have been brought against 
political dissenters, while commercial and other forms of flag 
desecration have been almost completely ignored. An article in 
Art in America points out that during the Vietnam War period, 
those arrested for flag desecration were ``invariably critics 
of national policy, while `patriots' who tamper with the flag 
[were] overlooked.'' \33\ Whitney Smith, director of the Flag 
Research Center has further observed that commercial misuse of 
the flag was ``more extensive than its misuse by leftists or 
students, but this is overlooked because the business interests 
are part of the establishment.'' \34\
---------------------------------------------------------------------------
    \33\ See Robert J. Goldstein, Two Centuries of Flagburning in the 
United States, 163 Flag Bull. 65, 154 (1995).
    \34\ Id.
---------------------------------------------------------------------------
    Almost as significant as the damage H.J. Res. 10 would do 
to our own Constitution is the harm it will inflict on our 
international standing in the area of human rights. To 
illustrate, when the former Soviet Union adopted legislation in 
1989 making it a criminal offense to ``discredit'' a public 
official, Communist officials sought to defend the legislation 
by relying on, among other things, the United States Flag 
desecration statute.\35\ Demonstrators who cut the communist 
symbols from the center of the East German and Romanian flags 
prior to the fall of the Iron Curtain committed crimes against 
their country's laws similar to the this Act. Americans 
justifiably applauded these brave actions as political speech, 
understanding the injustice of the laws of those regimes. If we 
are to maintain our moral stature in matters of human rights, 
it is essential that we remain fully open to unpopular dissent, 
regardless of the form it takes.\36\ By adopting H.J. Res 10 we 
will be unwittingly encouraging other countries to enact and 
enforce other more restrictive limitations on speech, while 
impairing our own standing to protest such actions.
---------------------------------------------------------------------------
    \35\ Rotunda, Treatise on Constitutional Law: Substance and 
Procedure Sec. 20.49 at 352 (2d ed. 1992).
    \36\ See Hearing on H.J. Res. 54, Proposing an Amendment to the 
Constitution of the United States Before the Subcomm. on the 
Constitution of the House Comm. on the Judiciary, 105th Cong., 2nd 
Sess. (April 30, 1997) [hereinafter 1997 House Judiciary Hearings] 
(statement of PEN American Center, Feb. 5, 1997) (``To allow for the 
prosecution of [flag burners] would be to dilute what has hitherto been 
prized by Americans everywhere as a cornerstone of our democracy. The 
right to free speech enjoys more protection in our country than perhaps 
any other country in the world.'').
---------------------------------------------------------------------------

   III. AMENDING THE CONSTITUTION TO LIMIT THE BILL OF RIGHTS SETS A 
                          DANGEROUS PRECEDENT

    Adoption of H.J. Res. 10 will also create a number of 
dangerous precedents in our legal system. The Resolution will 
encourage further departures from the First Amendment and 
diminish respect for our Constitution. As President Reagan's 
Solicitor General Charles Fried testified in 1990:

        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.\37\
---------------------------------------------------------------------------
    \37\ Measures to Protect the American Flag, 1990: Hearing Before 
the Senate Comm. on the Judiciary, 101st Cong. (June 21, 1990) 
(statement of Charles Fried at 113).

    Amending the Constitution, particularly concerning issues 
which inflame public passion, represents a clear and present 
danger to our core liberties.\38\ Conservative legal scholar 
Bruce Fein emphasized this concern when he testified before the 
Subcommittee at 1995 House Judiciary hearings:
---------------------------------------------------------------------------
    \38\ Legal philosopher Lon Fuller also highlighted this very 
problem over four decades ago: ``We should resist the temptation to 
clutter up [the Constitution with amendments relating to substantive 
matters. In that way we avoid] . . . the obvious unwisdom of trying to 
solve tomorrow's problems today. But [we also escape the] more 
insidious danger of the weakening effect [such amendments] have on the 
moral force of the Constitution itself.'' L. Fuller, American Legal 
Philosophy at Mid-Century, 6 J.L. Ed. 457, 465 (1954), as cited in 
Proposed Flag Desecration Amendment 1995: Hearing Before the Subcomm. 
on Constitution of the Senate Comm. on the Judiciary, 104th Cong. (June 
6, 1995) [hereinafter, 1995 Senate Judiciary Hearings] (statement of 
Gene R. Nichol).

        While I believe the Johnson and Eichman decisions were 
        misguided, I do not believe a Constitutional amendment 
        would be a proper response. . . . To enshrine authority 
        to punish flag desecrations in the Constitution would 
        not only tend to trivialize the Nation's Charter, but 
        encourage such juvenile temper tantrums in the hopes of 
        receiving free speech martyrdom by an easily beguiled 
        media. . . . It will lose that reverence and 
        accessibility to the ordinary citizen if it becomes 
        cluttered with amendments overturning every wrong-
        headed Supreme Court decision.\39\
---------------------------------------------------------------------------
    \39\ See Proposing an amendment to the Constitution of the United 
States authorizing the Congress and the States to prohibit the physical 
desecration of the flag of the United States, 1995: Hearing on H.J. 
Res. 79, Before the Subcomm. on Constitution of the House Comm. on the 
Judiciary, 104th Cong.(1995) [hereinafter, 1995 House Judiciary 
Hearings] (statement of Bruce Fein, at 1).

    Professor Norman Dorsen also points out in his testimony, 
``not including the Bill of Rights, which was ratified in 1791 
as part of the original pact leading to the Constitution, only 
17 amendments have been added to it, and very few of these 
reversed constitutional decisions of the Supreme Court. To 
depart from this tradition now . . . would be an extraordinary 
act that could lead to unpredictable mischief in coming 
years.'' \40\
---------------------------------------------------------------------------
    \40\ See 1997 House Judiciary Hearings, supra note 35 (statement of 
Professor Norman Dorsen, New York University School of Law).
---------------------------------------------------------------------------

                     IV. FLAG BURNING RARELY OCCURS

    H.J. Res. 10 responds to a perceived problem--flag 
burning--that is all but nonexistent in American life today. 
Studies indicate that in all of American history from the 
adoption of the United States flag in 1777 through the Texas v. 
Johnson \41\ decision in 1989 there were only 45 reported 
incidents of flag burning.\42\ Experience with prior efforts to 
criminalize flag desecration indicates that imposing such 
penalties have actually instigated flag burning.\43\
---------------------------------------------------------------------------
    \41\ See supra at 3-5.
    \42\ Robert J. Goldstein, Two Centuries of Flagburning in the 
United States, 163 Flag Bull. 65 (1995).
    \43\ In his extensive survey of the history of American flag 
desecration law, Robert Goldstein writes that ``[a]lthough the purpose 
of the [Flag Protection Act adopted by Congress in 1968] was to 
supposedly end flag burnings, its immediate impact was to spur perhaps 
the largest single wave of such incidents in American history.'' Robert 
J. Goldstein, Saving ``Old Glory'': The History of the American Flag 
Desecration Controversy 215 (1995).
---------------------------------------------------------------------------
    In addition to the relative infrequency of flag burning, 
proponents of the measure cast the current state of the law as 
though Congress is impotent to protect the flag. However, even 
witnesses who disagree with the Supreme Court rulings in 
Johnson and Eichman have stated that the impact of those cases 
was not so broad. In 1995, Bruce Fein stated as much in 
subcommittee hearings: ``Flag desecrations when employed as 
`fighting words' or when intended and likely to incite a 
violation of law remain criminally punishable under the Supreme 
Court precedents in Chaplinsky v. New Hampshire and Brandenburg 
v. Ohio.'' \44\
---------------------------------------------------------------------------
    \44\ 1995 House Judiciary Hearings, supra note 39 (statement of 
Bruce Fein at 1-2).
---------------------------------------------------------------------------

        V. THIS AMENDMENT IS THE WRONG WAY TO HONOR OUR VETERANS

    It is a mistake to argue that this amendment honors the 
courage and sacrifice of our veterans. While we condemn those 
who would dishonor our nation's flag, we believe that rather 
than protecting the flag, H.J. Res. 10 will merely serve to 
dishonor the Constitution and to betray the very ideals for 
which so many veterans fought, and for which so many members of 
our armed forces made the ultimate sacrifice. General Colin L. 
Powell echoed this sentiment:

        The First Amendment exists to insure that freedom of 
        speech and expression applies not just to that with 
        which we agree or disagree, but also that which we find 
        outrageous. I would not amend that great shield of 
        democracy to hammer a few miscreants. The flag will be 
        flying proudly long after they have slunk away.\45\
---------------------------------------------------------------------------
    \45\ Letter from General Colin L. Powell to Hon. Patrick Leahy, May 
18, 1999.

    Jim Warner, a Vietnam veteran and prisoner of the North 
---------------------------------------------------------------------------
Vietnamese from October 1967 to March 1973, has written:

        The fact is, the principles for which we fought, for 
        which our comrades died, are advancing everywhere upon 
        the Earth, while the principles against which we fought 
        are everywhere discredited and rejected. The flag 
        burners have lost, and their defeat is the most fitting 
        and thorough rebuke of their principles which the human 
        could devise. Why do we need to do more? An act 
        intended merely as an insult is not worthy of our 
        fallen comrades. It is the sort of thing our enemies 
        did to us, but we are not them, and we must conform to 
        a different standard. . . . Now, when the justice of 
        our principles is everywhere vindicated, the cause of 
        human liberty demands that this amendment be rejected. 
        Rejecting this amendment would not mean that we agree 
        with those who burned our flag, or even that they have 
        been forgiven. It would, instead, tell the world that 
        freedom of expression means freedom, even for those 
        expressions we find repugnant.\46\
---------------------------------------------------------------------------
    \46\ See 1997 House Judiciary Hearings, supra note 35 (statement of 
Jim Warner). These thoughts are echoed by Terry Anderson, a former U.S. 
Marine Staff Sergeant and Vietnam veteran who was held hostage in 
Lebanon. In testimony submitted at the same hearing, he wrote that 
``[H.J. Res. 54] is an extremely unwise restriction of every American's 
Constitutional rights. The Supreme Court has repeatedly held that the 
First Amendment protects symbolic acts under its guarantee of free 
speech. Burning or otherwise damaging a flag is offensive to many 
(including me), but it harms no one and is so obviously an act of 
political speech that I'm amazed anyone could disagree with the 
Court.'' (Id. statement of Terry Anderson).

    There are many ways Congress can honor veterans. First and 
foremost, we can ensure that programs designed to protect them 
and provide them with much needed assistance are properly 
funded. During the Full Committee markup of H.J. Res. 10 on May 
25, 2005, Ms. Lofgren offered an amendment that would have 
provided for such proper programming and funding. Ms. Lofgren 
proposed that H.J. Res. 10 would not take effect until Congress 
guaranteed that veteran's benefits promised to an individual in 
connection with that individual's enlistment or induction in 
the Armed Forces could not be diminished after enlistment or 
induction. Unfortunately, this Committee, with this 
Administration and the Republican majority, have chosen to 
honor veterans with symbolic legislation, rather than tending 
to the needs of our veterans, our service men and women in the 
field, and their families.
    Yet this year's budget short-changes our veterans in vital 
areas such as health care. The President's proposed budget, 
providing $31.4 billion for appropriated veterans' programs, is 
a staggering $338 million below the amount that the 
Congressional Budget Office estimates is needed to maintain 
services at the 2005 level. As the Disabled American Veterans 
observed:

        The Administration's budget for fiscal year (FY) 2006 
        seeks only $27.8 billion in appropriations for 
        veterans' medical care. This amounts to only a 0.4%--or 
        less than one-half of 1 percent--increase over the FY 
        2005 appropriation in nominal, or constant, dollars, 
        and therefore would be a reduction below the FY 2005 
        appropriation of $27.7 billion adjusted for inflation. 
        The Administration's budget would tighten funding for 
        veterans' medical care at a time when an influx of new 
        veterans from the wars in Iraq and Afghanistan will 
        place substantial new demands upon a system already 
        unable to meet its mission. With the FY 2005 
        appropriation, the Department of Veterans Affairs (VA) 
        had to maintain a freeze on new enrollments of lower 
        priority group veterans seeking medical care, and even 
        with that freeze, VA medical facilities across the 
        Nation are already experiencing shortfalls in FY 2005 
        funding. These shortfalls prevent the hiring of new 
        health care employees and new equipment purchases. The 
        Independent Budget, coauthored by the Disabled American 
        Veterans, AMVETS, the Paralyzed Veterans of America, 
        and Veterans of Foreign Wars, estimates that Congress 
        must appropriate $31.2 billion for veterans' medical 
        care in FY 2006 just to maintain current service 
        levels.\47\
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    \47\ Disabled American Veterans, To Maintain Essential Services for 
Veterans, Congress Must Provide Adequate Funding, (visited June 3, 
2005) .

    Rep. David Obey attempted to add an additional $2.6 billion 
to the FY 2006 Military Quality of Life and Veterans Affairs 
bill,\48\ but his amendment was rejected by the Appropriations 
Committee. As Rep. Obey argued:
---------------------------------------------------------------------------
    \48\ H.R. 2528, 109th Congress (2005).

        We also have a moral obligation to point out at every 
        opportunity that the reason why veterans will not be 
        receiving the health care they deserve is because of 
        the misbegotten, ill-advised budget that the Republican 
        Congress passed just a few short weeks ago. That 
        budget, which only one Republican member of the 
        Appropriations Committee opposed, is the reason that 
        veterans will not receive the health care that they 
        were promised and that they deserve.\49\
---------------------------------------------------------------------------
    \49\ H.Rpt. No. 109-94, at 95-96 (2005).
---------------------------------------------------------------------------

                               CONCLUSION

    Adoption of H.J. Res. 10 will undermine our commitment to 
freedom of expression and do real damage to the constitutional 
system established by our forefathers. If we amend the 
Constitution to outlaw flag desecration, we will be joining 
ranks with countries such as China, Iran and the former Soviet 
Union.\50\ We believe we have come too far as a nation to risk 
jeopardizing our commitment to freedom in such a fruitless 
endeavor to legislate patriotism. As the Court wrote in West 
Virginia State Board of Education v. Barnette:
---------------------------------------------------------------------------
    \50\ Roman Rolinick, Flag Amendment would put U.S. with Iran, 
China, UPI (July 1, 1989).

        [The] ultimate futility of . . . attempts to compel 
        coherence is the lesson of every such effort from the 
        Roman drive to stamp out Christianity as a disturber of 
        its pagan unity, the Inquisition as a means to 
        religious and dynastic unity, the Siberian exiles as a 
        means of Russian unity, down to the last failing 
        efforts of our present totalitarian enemies. Those who 
        begin coercive elimination of dissent soon find 
        themselves exterminating dissenters. Compulsory 
        unification of opinion achieves only the unanimity of 
        the graveyard.\51\
---------------------------------------------------------------------------
    \51\ 319 U.S. at 641.

    If we adopt H.J. Res. 10, we will be denigrating the vision 
of Madison and Jefferson. If we tamper with our Constitution, 
we will have turned the flag, an emblem of unity and freedom, 
into a symbol of intolerance. We will not go on record as 
supporting a proposal which will do what no foreign power and 
no flag burner has been able to do--limit the freedom of 
expression of the American people.

                      AMENDMENTS OFFERED AT MARKUP

    During the markup three amendments were offered by 
Democratic members:
1. Scott Amendment
    Description of Amendment: The amendment that would have 
replaced the word ``desecration'' with the word ``burning'' in 
order to make the proposed amendment neutral with respect to a 
person's expressive intent.
    Vote on Amendment: The amendment was rejected on a party 
line vote of 11 ayes and 19 nays. Voting aye: Mr. Conyers, Mr. 
Nadler, Mr. Scott, Mr. Watt, Ms. Lofgren, Ms. Jackson Lee, Mr. 
Meehan, Mr. Weiner, Mr. Schiff, Ms. Sanchez, and Mr. Van 
Hollen. Voting Nay: Mr. Coble, Mr. Smith, Mr. Gallegly, Mr. 
Chabot, Mr. Lungren, Mr. Jenkins, Mr. Cannon, Mr. Inglis, Mr. 
Hostettler, Mr. Green, Mr. Keller, Mr. Issa, Mr. Flake, Mr. 
Forbes, Mr. King, Mr. Feeney, Mr. Franks, Mr. Gohmert, and 
Chairman Sensenbrenner.
2. Lofgren Amendment
    Description of Amendment: The amendment would have 
specified that the constitutional amendment would not take 
effect until the date on which Congress by law ensures that the 
veteran's benefits promised to an individual in connection with 
that individual's enlistment or induction in the Armed Forces 
cannot, after that enlistment or induction, be diminished.
    Vote on Amendment: Chairman Sensenbrenner sustained an 
objection to the amendment on the ground that it was not 
germane to the legislation. A motion to table an appeal of the 
ruling of the Chair was adopted on a party line vote of 17 ayes 
and 9 nays. Voting Aye: Mr. Coble, Mr. Smith, Mr. Gallegly, Mr. 
Goodlatte, Mr. Chabot, Mr. Lungren, Mr. Jenkins, Mr. Cannon, 
Mr. Inglis, Mr. Hostettler, Mr. Green, Mr. Keller, Mr. Issa, 
Mr. King, Mr. Franks, Mr. Gohmert, and Chairman Sensenbrenner. 
Voting Nay: Mr. Conyers, Mr. Nadler, Mr. Scott, Mr. Watt, Ms. 
Lofgren, Mr. Weiner, Mr. Schiff, Ms. Sanchez, and Mr. Van 
Hollen.
3. Lofgren Amendment
    Description of Amendment: The amendment that would have 
substituted new language requiring that every flag of the 
United States manufactured in, or imported into, the United 
States after the effective date of the amendment must be 
manufactured out of flame-resistant material.
    Vote on Amendment: The Amendment was defeated by a voice 
vote.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Rick Boucher.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Martin T. Meehan.
                                   William D. Delahunt.
                                   Robert Wexler.
                                   Anthony D. Weiner.
                                   Linda T. Sanchez.
                                   Chris Van Hollen.