ment alone, important questions about the amendment's scope remain. Specifically, we still face the question whether the powers to be exercised under the amendment would be freed from all, or only some, First Amendment constraints, and, if the latter, how we will know which constraints remain applicable.

An example may help to illuminate the significance of this issue. In R.A.V. v. City of St. Paul, decided in 1992, the Supreme Court held that even when the First Amendment permits regulation of an entire category of speech or expressive conduct, it does not necessarily permit the government to regulate a subcategory of the otherwise proscribable speech on the basis of its particular message. A government acting pursuant to the proposed amendment would be able to prohibit all flag desecration, 12 but, if R.A.V. retains its force in this context, a government could not prohibit only those instances of flag desecration that communicated a particularly disfavored view. Statutes making it a crime or an enhanced penalty offense-to "physically desecrate a flag of the United States in opposition to United States military actions," for instance, would presumably remain impermissible.

This result obtains, of course, if and only if the proposed amendment is understood to confer powers that are limited by the R.A.V. principle. If, on the other hand, the proposed amendment overrides the whole of the First Amendment, or overrides some select though unidentified class of principles within which R.A.V. falls, then there remains no constitutional objection to the hypothetical statute posited above. This is a distinction that makes a difference, as I hope this example shows, and it should be immensely troubling to anyone considering the amendment that its_text leaves us with no way of knowing whether the rule of R.A.V.-or any other First Amendment principle-would limit governmental action if the amendment became part of the Constitution. 13

III.

I have real doubts about whether these interpretive concerns could be resolved fully by even the most artful of drafting. Any effort to constitutionalize an exception to the Bill of Rights necessarily will produce significant interpretive difficulties and uncertainty, as the courts attempt to reconcile a specific exception with the general principles that remain. But even assuming, for the moment, that all of the interpretive difficulties of this amendment could be cured, it would remain an ill-advised departure from a constitutional history marked by a deep reluctance to amend our most fundamental law. The Bill of Rights was ratified in 1791. Since that time, over two hundred years ago, we have not once amended the Bill of Rights. And this is no historical accident, nor a product only of the difficulty of the amendment process itself. Rather, our historic unwillingness to tamper with the Bill of Rights reflects a reverence for the Constitution that is both entirely appropriate and fundamentally at odds with turning that document into a forum for divisive political battles. Indeed, part of the unique force, security, and stature of our Bill of Rights derives from the widely-shared belief that it is permanent and enduring.

The Framers themselves understood that resort to the amendment process was to be sparing and reserved for "great and extraordinary occasions." 14 În The Federalist Papers, James Madison warned against using the amendment process as a device for correcting every perceived constitutional defect, particularly when public passions are inflamed. He stressed that "frequent appeals would, in great measure, deprive the government of that veneration which time bestows on everything, and

11 505 U.S. 377 (1992).

12 Even a statute that prohibited all flag desecration would be in tension with the principle of R.A.V. Although a few acts done with a flag could be considered a "desecration" in all contexts, that would not be the case with burning, for example. Only some burnings could be prohibited by statutes adopted under the proposed amendment. Respectful burning of the flag will remain legal after the amendment's adoption as before. See 36 U.S.C. § 176(k) ("The 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."). What may be prohibited is only that destruction of a flag that communicates a particular message, one of disrespect or contempt. The conclusion that a particular act of burning is a "desecration" may require in most instances consideration of the particular message being conveyed.

13 Another proposed amendment, contained in H.J. Res. 5, provides: "The Congress and the States shall have power to prohibit the act of desecration of the flag of the United States and to set criminal penalties for that act." Not only does the phrase "act of desecration" appear to be broader, and more vague, than the term "physical desecration" in S.J. Res. 14 and H.J. Res. 33, but H.J. Res. 5 also grants the power of prohibition to the fifty States and an uncertain number of local governments. That raises, of course, the interpretive question whether state legislatures acting under the amendment would remain bound by state constitutional free speech guarantees, or whether the proposed amendment would supersede state as well as federal constitutional provisions.

14 The Federalist No. 49, at 314 (James Madison).

without which perhaps the wisest and freest governments would not possess the requisite stability."

"15

The proposed amendment cannot be reconciled with this fundamental and historic understanding of the integrity of the Constitution. I think perhaps Charles Fried, who served with distinction as Solicitor General under President Reagan, made the point best when he testified against a similar proposed amendment in 1990:

The flag, as all in this debate agree, symbolizes our nation, its history, its values. We love the flag because it symbolizes the United States; but we must love the Constitution even more, because the Constitution is not a symbol. It is the thing itself.16

IV.

Americans are free today to display the flag respectfully, to ignore it entirely, or to use it as an expression of protest or reproach. By overwhelming numbers, Americans have chosen the first option, and display the flag proudly. And what gives this gesture its unique symbolic meaning is the fact that the choice is freely made, uncoerced by the government. Were it otherwise were, for instance, respectful treatment of the flag the only choice constitutionally available then the respect paid the flag by millions of Americans would mean something different and perhaps something less.

The CHAIRMAN. We will recess until further notice.

Mr. Moss. Thank you, Mr. Chairman.

[Whereupon, at 10:59 a.m., the committee was adjourned.]

15 See id. at 314-17. See also 1989 Hearings at 720-23 (statement of Professor Henry Paul Monaghan, Columbia University School of Law).

16 Proposing an Amendment to the Constitution Authorizing the Congress and the States to Prohibit the Physical Desecration of the American Flag: Hearing Before the Senate Comm. on the Judiciary, 101st Cong., 2d Sess. 110 (1990).

APPENDIX

PROPOSED LEGISLATION

ILA

106TH CONGRESS 1ST SESSION

S. J. RES. 14

Proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States.

IN THE SENATE OF THE UNITED STATES

MARCH 17, 1999

Mr. HATCH (for himself, Mr. CLELAND, Mr. ABRAHAM, Mr. ALLARD, Mr. ASHCROFT, Mr. BAUCUS, Mr. BOND, Mr. BREAUX, Mr. BROWNBACK, Mr. BUNNING, Mr. BURNS, Mr. CAMPBELL, Ms. COLLINS, Mr. COVERDELL, Mr. CRAIG, Mr. CRAPO, Mr. DEWINE, Mr. DOMENICI, Mr. ENZI, Mrs. FEINSTEIN, Mr. FITZGERALD, Mr. FRIST, Mr. GORTON, Mr. GRAHAM, Mr. GRAMM, Mr. GRAMS, Mr. GRASSLEY, Mr. GREGG, Mr. HAGEL, Mr. HELMS, Mr. HOLLINGS, Mr. HUTCHINSON, Mrs. HUTCHISON, Mr. INHOFE, Mr. JOHNSON, Mr. KYL, Mrs. LINCOLN, Mr. LOTT, Mr. LUGAR, Mr. MACK, Mr. MCCAIN, Mr. MURKOWSKI, Mr. NICKLES, Mr. REID, Mr. ROBERTS, Mr. ROTH, Mr. SANTORUM, Mr. SESSIONS, Mr. SHELBY, Mr. SMITH of New Hampshire, Ms. SNOWE, Mr. SPECTER, Mr. STEVENS, Mr. THOMAS, Mr. THOMPSON, Mr. THURMOND, and Mr. WARNER) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States.

1

Resolved by the Senate and House of Representatives 2 of the United States of America in Congress assembled 3 (two-thirds of each House concurring therein), That the fol4 lowing article is proposed as an amendment to the Con

(127)

2

1 stitution of the United States, which shall be valid to all 2 intents and purposes as part of the Constitution when 3 ratified by the legislatures of three-fourths of the several

4 States within 7 years after the date of its submission for 5 ratification:

6 7

"ARTICLE

"The Congress shall have power to prohibit the phys

8 ical desecration of the flag of the United States.".

⚫SJ 14 IS