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 "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 of 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 yesterday, 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.” Sincerely, RICHARD D. PARKER, Williams Professor of Law. THE UNIVERSITY OF UTAH, Salt Lake City, UT, March 11, 1999. Re: proposed criminal statute on flag protection. Senator, ORRIN G. HATCH, Chairman, Senate Judiciary Committee, DEAR SENATOR HATCH: Thank you for your recent inquiry about the constitutionality and practicality of the Flag Protection and Free Speech Act, a proposed federal criminal statute prohibiting flag burning in certain narrowly-specified circumstances. I understand your inquiry to request information primarily about section (a) of the statute, which would provide federal criminal penalties for any person "who destroys or damages a flag of the United States with the primary purpose and intent to incite or produce imminent violence or a breach of the peace, and in circumstances where the person knows it is reasonably likely to produce imminent violence or a breach of the peace.” Sections (b) and (c), prohibiting theft of flags belonging to the federal government or on federal property, do nothing other than duplicate existing laws. Under current Supreme Court doctrine, section (a) has grave constitutional difficulties and would, in all likelihood, be invalidated by the Court were a case to present the issue. Two serious challenges can be raised. First, as you are well aware, the Supreme Court in several recent cases has emphasized that Congress must not tread on the powers reserved for the states. Thus, in United States v. Lopez, 514 U.S. 549 (1995), the Court declared unconstitutional the federal GunFree School Zones Act, which made it a federal crime to possess a firearm in or near a school. The Court explained, "[t]he possession of a gun in a local school zone is in no sense an economic activity that might through repetition elsewhere, substantially affect any sort of interstate commerce." Id. at 567. The same kind of challenge can be raised to proposed anti-flag burning provision. It essentially criminalizes breach of the peace throughout the states whenever that breach relates to a flag. It is unclear what power Congress could use to justify this extension of the federal criminal law. The statute is also, of course, open to serious challenge under the Supreme Court's opinions striking down two previous criminal statutes prohibiting flag burning. As is well known, in Texas v. Johnson, 496 U.S. 310 (1990), and again in United States v. Eichman, 496 U.S. 310 (1990), the Supreme Court by the narrowest of margins declared unconstitutional statues that singled out the flag for special protection. The five-member majority in Eichman explained that, in seeking to protect the flag, "the Government's asserted interest is related to the suppression of free expression." 496 U.S. at 315 (internal quotations omitted). This principle demonstrates that the third time will not be the charm in surviving Supreme Court re view. The proposed statute's express goal-the protection of the flag-is that which the Court has found to be constitutionally impermissible. It makes no difference that the proposed statute is narrowly drawn so as to cover only destruction of the flag with the intent to produce violence or a breach of the peace. The fact remains that the statute's animating concern is for the "flag's symbolic value," 496 U.S. at 317, something that the current Court will not permit. Indeed, the narrowness of the provision's reach only renders it more susceptible to attack. In a separate line of cases, the Court has explained that "selective limitations upon speech" are subject to First Amendment attack. See, e.g., R.A.V. v. City of St. Paul, Minn., 505 Ú.S. 377, 392 (19912). Nothing could be more "selective" than a statute that singles out for criminal sanction, among all forms of breach of the peace, those involving flag desecration. All of this strongly suggests that the proposed statute would not survive constitutional challenge in the Supreme Court. It is open to question, however, whether a conviction under the statute could ever be obtained without the virtual consent of a defendant. The statute covers those who act with the "primary purpose and intent" of producing "imminent violence or a breach of the peace.” As a former federal prosecutor, I find it hard to imagine a case of flag burning that would fall within these terms-much less one that could be proven beyond a reasonable doubt to do so. Perhaps if the statute were adopted, a person hoping to be the Supreme Court test case would obligingly announce that his purpose is to provoke such a breach of the peace. It is debatable whether such a prosecution would truly involve a "case or controversy" under the Constitution eligible for Court review. Other than such contrived situations, virtually no case of flag desecration would be prohibited by the provision. As I understand the intent of the drafters of the provision, it was to demonstrate "zero tolerance for those who deface our flag" by providing "swift and certain punishment" for flag desecration. 41 Cong. Rec. S15338 (Oct. 19, 1995) (statement of Sen. McConnell). The statute plainly will not achieve these goals. The only way to truly protect our nation's national symbol is to pass a constitutional amendment, as the overwhelming majority of the nation's citizens desire. Such a step would be no innovation, nor would it pose a threat to recognized freedoms. Until the recent decisions of the Supreme Court, it was generally accepted that statutes criminalizing the desecration of the flag were consistent with our constitutional history and traditions. I hope that the Congress will move swiftly to restore this conventional understanding. Sincerely, PAUL G. CASSELL, CONGRESSIONAL MEDAL OF HONOR SOCIETY, UNITED STATES OF AMERICA, "WHAT THE FLAG MEANS TO ME" Olympia, WA. As a young man I was exposed to some history of our flag by our Scout Master, Mr. Robert Timkala. This was a very short dissertation concluded with honor your flag. As an adult I have cherished his words and followed his direction and I fly the American Flag at my home and place of business every day. This represents to me the strength of our country as it protects all of the citizens and much of the free world. The raising of the flag on Iwo Jima represented the successful conclusion of the massive task in World War II, the honor and pride I have in this symbol of our great nation and should not be reduced in any manner. Sincerely, ROBERT E. BUSH, C.M.H., Past President, Medal of Honor Society. REMARKS OF RAY DAVIS ON BEHALF OF MAJ. GEN. PATRICK BRADY Consider all those legions of young Americans who stood tall when our flag was near and then gave their lives to defend it. Recall Fort McHenry in September, 1814, where our gallant defenders withstood 25 hours of bombardment from enemy ships, then repelled a landing force as they refused to lower our flag. That flag inspired our national anthem. Permitting the desecration of our flag will invite conflict. Teams of fighters will be formed to extinguish any burning flag, fight any desecration and encourage respect for our flag-all under the stretched definition of "speech". APRIL 29, 1997. No one loves liberty more than those who lose it and lose it for a long time. I was shot down on August 26, 1967*** captured, escaped, and was recaptured some two weeks later. I spent 38 months of my 67 months in solitary *** where I had the time to sort out what is important, and what is not. I started my daily regimen by first saying the pledge of allegiance to the flag, then reciting the lord's prayer, and then praying for my family. The reason for doing it in that order was that I knew above all other things that my country would never desert me * * * and it was of utmost importance that I not desert my flag! She was my link to civilization. When we were moved into joint living with about 40 other people, I was the commander. I ordered my troops to face to the East every afternoon to say the pledge of allegiance. This motivated one of my junior officers (Mike Christian) to craft a home-made flag from scraps. He sewed it inside of his shirt, and at pledge time, he would turn the shirt wrongside out, hang it on a line *** and we would say the pledge and render a hand salute. It was the best time of every day. At one of the shakedown inspections, the commies found the flag. They brutally dragged Mike out and we could hear them beating him for hours. He came back that nite with broken ribs, and his face battered. They broke his ribs *** but not his spirit. A few days passed and Mike approached me. He said: "Major, they got the flag *** but they didn't get the needle I made it with. If you agree ***I'm making another flag!" it. My answer was ***"Do it!" It was several weeks before we had another homemade flag * * * but he finished There was never a day from that day forward that the stars and stripes did not fly in my room, with 40 American pilots proudly saluting! What we guaranteed to 40 American prisoners should be the minimum guarantee for the entire United States. God bless U, and God bless your efforts. COL. BUD DAY, MOH-AFC, APRIL 24, 1997. Per your request, here are some of my thoughts on what the flag means to me. A few days ago I went to a friend's wake service. There in his casket, in front of the church for all to see was a neatly folded United States flag, given to the family from a grateful nation. Ray was a veteran and had served his country honorably. I couldn't help but think, would the flag mean as much to the family of a deceased veteran or to any American if we allow people to burn, spit and whatever else they do in the name of "Freedom of Speech". As a veteran myself, I am sick of it, and feel the flag should be protected for future generations. Sincerely, MICHAEL J. FITZMAURICE, CMH. FRATERNAL ORDER OF POLICE, NATIONAL LEGISLATIVE PROGRAM, Hon. ORRIN HATCH, Chairman, Senate Committee on the Judiciary, Washington, DC, April 13, 1999. DEAR MR. CHAIRMAN: I am writing this letter on behalf of the more than 277,000 members of the Grand Lodge, Fraternal Order of Police to advise you of the strong support of S.J. Res. 14, which would amend the Constitution to give Congress the power to prohibit the physical desecration of our nation's flag. Attempts by the Congress to protect the flag statutorily have failed to withstand judicial review. The Supreme Court has, in two narrow 5-4 decisions, overturned statutes prohibiting physical desecration of the flag. Amending the Constitution is the only way to return to the American people the right to protect their flag. Flag burning is not free speech; it is an act of vandalism—a hate crime, pure and simple. What is the difference in the political statement made by a vandal torching the American flag and a terrorist who makes his political statement by blowing up government buildings? Quite simply, there is no difference. The American people recognize that, and Congress ought to recognize it by passing this amendment. When we bury a hero, a brother or sister from the ranks of our military or our police departments, a flag is draped over the coffin. It is folded solemnly and presented to the surviving members of the family in remembrance of the one who gave his or her life. Whether a soldier fighting a foreign enemy on a foreign shore, or a police officer killed in the line of duty-the sacrifice of each is symbolized by the flag. To desecrate this symbol is to dishonor that sacrifice. To use freedom or liberty as a shield to commit a crime is no more than base cynicism and a very real miscomprehension of the American concept of liberty. I salute you, Mr. Chairman, for your sponsorship of Senate Joint Resolution 14, and join you in urging all members of the United States Senate to protect our flag from those who would dishonor our nation and its heroes. If we can be of any further assistance to you in moving this bill forward, please do not hesitate to contact me or Executive Director Jim Pasco at my Washington office. Sincerely, GILBERT GALLEGOS, National President. B/G PAT BROOKS, CHAIRMAN OF THE BOARD WHAT THE FLAG MEANS TO ME. The American Flag means can go anywhere I want to go. I fought for the American Flag and the United States of America. We won the victory when we was fighting in Korea. It was for the Red, White and Blue Flag, and the United States of America. God Bless you all. RODOLPHO "RUDY" P. HERNANDEZ. THE AMERICAN LEGION, Washington, DC, April 14, 1999. Hon. ORRIN HATCH, Washington, DC. DEAR SENATOR HATCH: On behalf of the 4 million members of the American Legion family, I want to personally thank you for sponsoring SJR 14, the Flag Protection Constitutional Amendment. We truly realize how important passage of this amendment is to the future of our children. It is imperative that we return to the American people the right to protect the U.S. Flag. I can assure you that Legionnaires and their families will do everything possible throughout our great nation to assist you in getting SJR 14 passed this year. The majority of Americans support this amendment. Polling during the past 10 years has consistently shown nearly 80 percent of voters believe protecting the U.S. Flag through a constitutional amendment is the right thing to do. They do not believe such protection is a threat to freedom to speech. I am certain you were as touched as I in reading the reports of our stealth pilot rescued from Yugoslavia. He carried an American flag, folded under his flight suit. The flag was given to him by an airman before he took off from Aviano Air Base in Italy. Following his rescue the pilot told reporters, "For me, it (the flag) was representative of all the people who I knew were praying. It was a piece of everyone and very comforting. It helped me not let go of hope. Hope gives you strength *** it gives you endurance." My heart also swelled with pride when I saw an Associated Press photo of a flyer from the 31st Air Expeditionary Wing at Aviano waving an American flag to boost morale as U.S. war planes prepared to launch another series of strikes in support of NATO's Operation Allied Force. The U.S. Flag is a powerful symbol. A living symbol of our great nation. Providing a special place in the U.S. Constitution that protects our flag is what Americans want and deserve. I stand ready to assist you in any way that will help assure passage of this amendment. I know that your encouragement of your fellow Senators will make the crucial difference. Thank you again for your sponsorship of SJR 14. Sincerely, HAROLD L. "BUTCH" MILLER, THE AMERICAN LEGION, Indianapolis, IN, April 23, 1999. Hon. ORRIN HATCH, Washington, DC. DEAR SENATOR HATCH: On September 5, 1989, American Legion delegates at the National Convention in Baltimore, Maryland, unanimously adopted a resolution seeking adoption and ratification of a flag-protection amendment. In every year since, the issue has been debated at every national convention and at every meeting of the National Executive Committee, and a new resolution authorizing continuation of the campaign has been adopted. Each resolution supporting a flag-protection amendment passed unanimously with all Past National Commanders having a right to be heard. Past National Commander Keith Kreul, who, as a PNC and delegate to the National Conventions, has both a voice and a vote in the making of Legion policy, has never publicly uttered a word in opposition. As National Commander, it is my duty, and privilege, to serve a one-year term as the executive head of the The American Legion with full power to enforce the provisions of the National Constitution and by-laws as well as resolutions of the National Convention. And this national commander fervently supports the flag-protection amendment, as do all living Past National Commanders of The American Legion, save one. In honor of their service, I would like to enter into the record the 28 Past National Commanders of The American Legion who have given of themselves for God and Country and who stand with me in their support of an amendment which would return to the American people the right to protect their flag. They are listed below in order of service. E. Roy Stone, Jr., South Carolina. Erle Čocke, Jr., Georgia. J. Addington Wagner, Michigan. James M. Wagonseller, Ohio. Miles S. Epling, West Virginia. Robert S. Turner, Georgia. Dominic D. DiFrancesco, Pennsylvania. Roger A. Munson, Ohio. Bruce Thiesen, California. William M. Detweiler, Louisiana. Daniel A. Ludwig, Minnesota. Joseph J. Frank, Missouri. Anthony G. Jordan, Maine. Their service spans nearly five decades. Many served in their position in an era when our flag was protected under law. Only ten of us have served since the erroneous 1989 Texas v. Johnson Supreme Court decision which invalidated flag protection laws in 48 states and the District of Columbia. |