QUESTIONS AND ANSWERS

APRIL 20, 1999

RESPONSES OF MAJ. GEN. PATRICK BRADY TO QUESTIONS FROM THE SENATE COMMITTEE ON THE JUDICIARY

Question 1. In your view, is it appropriate for the government to protect the burning of a cross, but not the burning of an American flag? If so, why?

Answer. Whether or not the government protects the burning of a cross I think, would depend on the circumstances. I don't see how one can compare a particular religious symbol to a symbol which represents religious freedom. In any event burning a cross or a flag must be a hate crime if there is to be such a thing.

Question 2. Some have suggested that prohibiting physical desecration of the American flag is similar to the suppression of dissent in countries like Nazi Germany, China, and Cuba. Do you believe this is a fair comparison?

Answer. No. This is the most distressing of all the arguments of those who would deny the people the right to protect their flag. To hear a protected American flag, protected according to the will of the majority of a free people, compared with a flag protected according to the will of despots, hurts. George Washington helped design and adopt our flag, does that align him with Communists? James Madison, who wrote the First Amendment, and Thomas Jefferson, believed our flag should be protected. Does that align them with Hitler, or Mao Tse Tung or Castro? It is the remarkable differences between our flag and the flags of tyrants that warrants its protection.

Question 3. In your opinion, what are the most pressing issues facing our veterans?

Answer. Many veterans I speak to are concerned about broken promises, especially health care.

Question 4. Are you aware of the INS's current practice of detaining and deporting American veterans for minor drug-related offenses, without providing them with any meaningful opportunity to be heard regarding their service or other personal circumstances? Are you aware of any veterans organizations that are trying to help veterans who are caught up in immigration proceedings?

Answer. Deporting American Veterans? Where? No, I have not heard of this. Question 5. How much has the Citizens' Flag Alliance and its member organizations expended on its efforts in support of the proposed constitutional amendment? I would like to know both the total amount spent, and a breakdown of your expenditures since the organization was founded in 1994.

Answer. The CFA does not raise money. The American Legion has appropriated by resolution with the consent of its members $13.277 million for the flag campaign over a period of five years. This money has been spent on the services of legal counsel, lobbyists and grassroots education, travel and related expenses.

Question 6. You asserted at today's hearing that there are "hundreds" of flag burnings in this country each year. By contrast, your organization's Web site lists only 73 incidents of flag "desecration" over the last five years, and many of those incidents involved simple theft or acts other than actual flag burnings. The Congressional Research Service has uncovered only about three dozen flag incidents during the same period, or about seven incidents a year, and Professor Robert Justin Goldstein, the leading historical scholar on this issue, testified last year that there have been only about 200 flag burning incidents in the entire history of the country. Given this discrepancy in the data, could you provide this Committee with all documentary support for your assertion?

Answer. I was responding to a comment that there had only been 36 (?) since the Court's decision, not each year. It is safe to say there have been hundreds but no one knows the exact number since it is legal and many don't get reported. In Connecticut alone there were reported over a hundred. The following is from the 6–12– 98 issue of the Hartford Courant. "The small American flags marking the graves of veterans in the Nathan Hale Cemetery have disappeared. The flags, which were placed at the grave sites by members of the local American Legion before Memorial Day, were ripped from their posts, police and the cemetery caretaker said. Half of the about 150 flags disappeared Friday night; the remainder were discovered miss

ing Wednesday. "There's not a single one left," said Nelson Bearce, the sexton of the century, which is on Lake Street. In WA they have flag sitters on patriotic days to protect the flags. In any event what has the number to do with what is right or wrong?

Question 7. Your organization has argued that the Supreme Court's decision in Johnson overturned 200 years of precedent, and that the Founding Fathers thought that flag desecration should be punished. Why was there no federal flag desecration law until 1968?

Answer. Laws were written in the States and on the books from the 1880's. It wasn't until the 1960's with the overwhelming number of flag desecration incidents that Congress passed a law to prohibit flag desecration in the District of Columbia. It came as a result of the effect that such desecrations had on the morale of the men on the front lines in Vietnam. It was, I believe, the flag protection act of 1967 and it had very heavy support from Congress * * * as did the flag protection act of 1989.

Question 8. Major General Brady, the President of the American Bar Association wrote a letter last year opposing this amendment, writing that "America is not so weak that it must serve patriotism by mandating it through a constitutional amendment." Do you think that passing this amendment would show American weakness or, to the contrary, would it show American strength and resolve in protecting our values?

Answer. Answer was not legible.

Question 9. When did you first become involved with Citizens Flag Alliance? What positions have you held with the organization and when did you serve in those positions?

Answer. I was elected to the Board of Directors in 1994 and became the Chairman of the Board in 1996.

Question 10. Your testimony states that the Citizens Flag Alliance is a coalition of 140 organizations representing some 20 million people. Please provide a list of your member organizations and their approximate number of members.

Answer. List provided by separate cover (fax).

Question 11. You stated at the hearing that there have been "hundreds" of flag desecration incidents in this country in recent years. The Congressional Research Service has been able to identify only 36 reported incidents since January 1995. Please provide whatever documentation you or your organization have compiled of flag desecration incidents since that date.

Answer. See above answer.

Question 12. Your testimony states that flag burning and the Supreme Court's decision that laws prohibiting it are unconstitutional "teach [] that the outrageous acts of the minority are more important than the will of the majority." Don't you agree that the Bill of Rights of our Constitution is intended to protect the rights of individuals against the will of the majority?

Answer. That is certainly part of it but the outrageous acts of a minority should never be more important than the will of the majority in a country such as ours. I believe that the amendment clause in the Constitution is designed to protect the majority from mistakes by a minority, in this case, the Supreme Court. So much of what we hear on this and much else is opinion. It is the will of the majority that should determine the facts.

CITIZENS FLAG ALLIANCE, INC. MEMBER ORGANIZATIONS-AS OF APRIL 9, 1999 AMVETS (American Veterans of WWII, Korea and Vietnam), African-American Women's Clergy Association, Air Force Association, Air Force Sergeants Association, Alliance of Women Veterans, American Diamond Veterans, National Association, American GI Forum of the U.S., American GI Forum of the U.S. Founding Chapter, The American Legion, American Legion Auxiliary, American Merchant Marine Veterans, American War Mothers, Ancient Order of Hibernians, Association of the U.S. Army, Baltic Women's Council, Benevolent & Protective Order of the Elks, Bunker Hill Monument Association, Inc., Catholic Family Life Insurance, Catholic War Veterans, The Center for Civilian Internee Rights, Inc., and The Chosin Few.

Combat Veterans Association, Croatian American Association, Croatian Catholic Union, Czech Catholic Union, Czechoslovak Christian Democracy in the U.S.A., Daughters of the American Colonists, Drum Corps Associates, Dust Off Association, Eight & Forty (des Huit Chapeaux et Quarante Femmes), Enlisted Association National Guard U.S. (EANGUS), Family Research Council, Fleet Reserve Association, Forty & Eight (La Societe des Quarante Hommes et Huit Chevaux), Fox Associates,

Inc., The General Society, Sons of the Revolution, Gold Star Wives of America, Inc., Grand Aerie, Fraternal Order of Eagles, Grand Lodge Fraternal Order of Police, Grand Lodge of Masons of Oklahoma, Great Council of Texas, Order of Red Men, Hungarian Association, and Hungarian Reformed Federation of America.

Just Marketing, Inc., Knights of Columbus, Korean American Association of Greater Washington, Ladies Auxiliary of Veterans of World War I, MBNA America, Marine Corps League, Marine Corps Mustang Association, Inc., Marine Corps Reserve Officers Association, Medal of Honor Recipients for the Flag, Military Order of the Purple Heart of the U.S.A., The Military Order of the Foreign Wars, The Military Order of the World Wars, Moose International, National Alliance of Families for the Return of America's Missing Servicemen, National Association for Uniformed Services, National Association of State Directors of Veterans Affairs, Inc. (NASDVA), National Center for Public Policy Research, National 4th Infantry (IVY) Division Association, National FFA (Future Farmers of America) Organization, National Federation of American Hungarians, Inc., National Federation of State High School Associations, National Grange, National Guard Associations of the U.S., and National League of Families of Am. Prisoners and Missing in SE Asia.

National Officers Association (NOA), National Organization of World War Nurses, National Service Star Legion, National Slovak Society of the United States, National Sojourners, Inc., National Society Daughters of the American Revolution, National Society of the Sons of the American Revolution, National Twenty & Four, National Vietnam Veterans Coalition, Native Daughters of the Golden West, Native Sons of the Golden West, Navajo Codetalkers Association, Naval Enlisted Reserve Association (NERA), Navy League of the U.S., Navy Seabee Veterans of America, Non-Commissioned Officers Association, The Orchard Lakes School, PAC Pennsylvania Eastern Division, Past National Commander's Organization (PANCO), Patrol Craft Sailors Association, Polish American Congress, Polish Army Veterans Association (S.W.A.P.), Polish Falcons of America, and Polish Falcons of America-District II.

Polish Home Army, Polish Legion of American Veterans, U.S.A., Polish Legion of American Veterans, U.S.A. Ladies Auxiliary, Polish National Alliance, Polish National Union, Polish Roman Catholic Union of North America, Polish Scouting Organization, Polish Western Association, Polish Women's Alliance, The Reserve Officers Association of the United States, The Retired Enlisted Association (TREA), The Retired Officers Association of Indianapolis, Inc., Robinson International, Ruritan National, Sampson WWI Navy Vets, Inc., San Diego Veterans Services**, Scottish Rite of Freemasonry-Northern Masonic Jurisdiction, Scottish Rite of FreemasonrySouthern Jurisdiction, The Seniors Coalition, Sons of Confederate Veterans, Sons of The American Legion, Sons of the Revolution in the State of Wisconsin, Sportsmen's Athletic Club-Pennsylvania, and Standing Rock Sioux Tribe.

Texas Society Sons of the American Revolution, The Travelers Protective Association, TREA Senior Citizens League, The Ukrainian Gold Cross, The Uniformed Services Association (TUSA), United Armed Forces Association, Ú.S. Coast Guard Enlisted Association, U.S. Coast Guard Chief Petty Officer Association, U.S. Marine Corps Combat Correspondents Association, U.S. Pan Asian American Chamber of Commerce, U.S.A. Letters, Inc., U.S.S. Intrepid Association, Inc., Veterans of the Battle of the Bulge, Veterans of the Vietnam War, Inc., Vietnam Veterans Institute (VVI), Vietnam Veterans of America, Chapter 415, Vietnam Veterans of America, Chapter 566, VietNow, Virginia War Memorial Foundation, WAVES National, Women's Army Corps Veterans Association, Women's Overseas Service League, Woodmen of the World, 63rd Infantry Division Association, USAR, and 66th Engineering TOPO Vets**—140 Total.

HARVARD LAW SCHOOL, Cambridge, Massachusetts, April 27, 1999.

Sen. ORRIN HATCH,

U.S. Senate,

Washington, DC.

DEAR SENATOR HATCH. Thank you for your letter enclosing questions submitted by members of the Judiciary Committee regarding my testimony about the flag amendment on April 20. My responses are as follows.

** Indicates added organization.

RESPONSES OF RICHARD D. PARKER TO QUESTIONS FROM SENATOR HATCH Question 1. The question is about the “Guidelines for Constitutional Amendments” promulgated by a group that calls itself "Citizens for the Constitution." As I said on April 20, I am familiar with this group. I participated in two of its meetings— one public, one private-held at Harvard Law School. I have general views about its "Guidelines" project as well as particular views about application of the "Guidelines" to the flag amendment.

THE “GUIDELINES" IN GENERAL

Answer 1. Three general features of the "Guidelines" project are striking. (1) The ultimate and authoritative guidelines for amendment of the Constitution are set forth in the document itself. On one hand, Article V prescribes the requisite supermajority votes required of specified representative institutions. And, on the other, the Preamble makes clear that the "sovereign" to which representative institutions in the federal government are responsible is "We, the People." It follows that, in the end, the crucial guideline for congressional referral of a proposed constitutional amendment to the state legislatures is the will of the people-a will that is sustained, over some time, by more than a bare majority among them. Of course, anyone is free to try to persuade the people (and their representatives) to support or oppose a particular amendment. What's more, anyone is free to advocate general "guidelines" for amendment going beyond the democratic ones set forth in the Constitution just as anyone is free to advocate general "guidelines" that ought to be met by social welfare legislation or health care legislation. But the job of Congress, I would assume, is to vote up or down on each proposal and to do so as representatives of the people, not as devotees of anyone's extra-constitutional "theory."

(2) The eight "guidelines" advocated by the Citizens for the Constitution are platitudes. Although (as I have indicated) they should not be viewed as requirements, who could disagree, in the abstract, that they are, at least, relevant considerations? Indeed, they are so commonplace and vaporous as to make one wonder why anyone would imagine Congress needs to be informed of their relevance. The question is: What are the drafters of the "guidelines" afraid of?

(3) The overall emphasis in the Introduction to the "guidelines" and in the "guidelines" themselves is on "self-restraint" and on fear that "self-restraint may be breaking down" among elected representatives-rather than on responsiveness to the people. The bias, indeed, is in favor of "amendment" of the Constitution by unelected people wearing black robes-rather than by elected representatives as was plainly intended by Article V. The Citizens for the Constitution may talk of the value of "stability." But they seem unconcerned about instability produced by constant changes in constitutional meaning accomplished by a majority often a mere 5-4 majority of the Supreme Court. What they are afraid of—and what their scare rhetoric seeks to stir up fear of-is "We the People."

The "guidelines" thus seek to entrench the status quo, the judicially determined status quo. There was a similar effort-also led by prestigious members of the barearly in this century. Then, prominent lawyers and law professors sought to entrench a judicially determined status quo-the common law-against social welfare and regulatory reform by legislatures. Then, too, they mobilized abstract platitudes in service of "stability." But, then, it was progressives who exposed and opposed their effort to stymie democratic government. Where are the self-styled "progressives" today? It seems (as an active Democrat I'm sorry to say this) that a number of them have taken up the old across-the-board stance against change and democracy.

THE "GUIDELINES” AS APPLIED TO THE FLAG AMENDMENT

As abstract platitudes, the "guidelines" are susceptible to use as wise-sounding wrapping around conclusory assertions-what I describe to my students as "reasoning by harrumphing." Thus a standpatter can cite one of them and simply say, "I'm concerned [or worried] about that." I am confident the Senate will not settle for such a parody of debate. And, once citation of the "guidelines" is made a subject of clear-headed point-by-point debate, I am confident that the Senate will see that, as applied to the flag amendment, the "guidelines" are in fact fully satisfied. Let me go though the eight "guidelines" in order.

(1) "Abiding Importance" In my testimony, I took pains to emphasize that what is at stake here is not a matter of "immediate gratification" or of opposition to a particular series of flag-burnings. Rather, I said, it is about restoring the power of Congress to preserve a vital national resource, a resource that is invisible but no less real for that-respect for the ideal of national community, uniquely symbolized

by the flag. This resource was long taken for granted, but is being eroded not by the "malcontents" who trash the flag, but by the 5-4 Court decision that "amended" the First Amendment to legitimate the trashing and by the failure of the rest of us to correct that mistake decision. Our children, or our children's children, eventually may not even remember what this eroded resource was, much less have access to it. If that happens, they will be the poorer, since any great military or domestic project depends on it and since, as I said, liberty that lacks a foundation in community rests on a foundation of sand. What is at stake, then, is the kind of America we leave to future generations, obviously a matter of "abiding importance."

(2) Making "Our System More Politically Responsive or Protect[ing] Individual Rights" The flag amendment restores to Congress power to be responsive to a sustained value-commitment of most of the American people. It was the 5-4 Court decision that "amended" the Constitution, after two centuries, to block such responsiveness. The majority of the Court did not "protect" an individual "right." It concocted a new one. By the same token, the Court did not "protect" a "powerless minority." For the right of a minority to express its views in any number of ways (by words and by acts) has long been guaranteed and is not affected by the proposed amendment. If however, long-recognized free speech rights are to be maintained in the future-if free speech is not to turn into a contest to see who can yell loudest-respect for American community-despite-diversity must be maintained. That is the aim of this amendment. Hence, this amendment protects individual rights.

(3) Exhaustion of "Other Means" In 1989, Congress went the extra mile and, against good advice, tried a statutory alternative to an amendment. It was slapped down immediately by the 5-4 Court majority. It is now perfectly clear-as I demonstrated in my letter to you of March 10-that there is absolutely no alternative. All "other means" have been thoroughly exhausted.

(4) Consistency With "Related Constitutional Doctrine That The Amendment Leaves Intact" The flag amendment is more narrowly and sharply focused than any under consideration in the last two decades. It is designed specifically to correct one and only one mistaken "interpretation" of the First Amendment by five Justices in 1989 and 1990. It would restore to the First Amendment the meaning it was understood to have for the two centuries before 1989. Plainly, then, it is perfectly consistent with all other free speech doctrine, that which existed along with it before 1989 and that which has been elaborated since then. Thus, contrary to bizarre speculation in the statement by the Acting Assistant Attorney General, the void-forvagueness doctrine and the doctrine of the R.A.V. decision would not be affected in any way. A statute enacted under the amendment would have to pass muster under both-that is, it could not be excessively vague (and the Flag Protection Act of 1989, drafted with much expert advice, was not) and it could not discriminate among particular points of view of those who physically desecrate the flag in a fashion specified by the statute (and the Flag Protection Act of 1989 does not). What is most peculiar is that opponents of a restorative (as opposed to a transformative) amendment try to depict it as "inconsistent" with surrounding doctrine-or as an "amendment of the Bill of Rights"! Obviously, this is utterly false.

(5) "Enforceable Standards" Being so narrowly and sharply focused-and being intended to restore authority that the Congress exercised for most of this century and, in particular, to validate the Flag Protection Act of 1989—there can be no legitimate issue on this count. Terms in provisions of the Constitution are interpreted in context. And, in this case, there is a long-standing context and practice by which to read the terms "physical desecration" and "flag."

(6) "Think[ing] Through and Articulat[ing] Consequences" For the last ten yearsand particularly for the last five-we have considered consequences of adopting the flag amendment. There is no issue on this count. What is odd, again, is that anyone would raise it with respect to a proposed amendment that restores—rather than transforms the long-understood meaning of the Constitution.

(7) "Full and Fair Debate" Everyone recognizes that the debate over this amendment has been as "full" and as "fair" as a debate could possibly be.

(8) "Ensur[ing] a Contemporaneous Consensus" It is, of course, up to Congress whether to set a deadline for ratification of an amendment and, if so, what deadline. In this case, however, there is little problem of ensuring a "contemporaneous consensus." Already, the legislatures of 49 states have memorialized Congress urging it to send the flag amendment to them, pursuant to Article V. It is as likely as can be that they will act on it promptly once it is sent to them.

At the hearing on April 20, we were criticized for having "chosen" the "mechanism" of constitutional amendment. It was, however, the framers who “chose” it. And for good reason. Article V is the keystone of the authority of the Constitution. It guarantees that despite short-sighted efforts by some to entrench a judicially determined status quo-the Constitution will remain the property of "We the People."