Michael J. Fitzmaurice, dated Apr. 24, 1997 Gilbert Gallegos, national president, Fraternal Order of Police, National Wanda S. North, Salon National La Boutique, Dated Mar. 13, 1999 Richard D. Parker, Harvard Law School, dated Apr. 23, 1999 Stephen B. Presser, Raoul Berger professor of legal history, Northwestern AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, AUTHORIZING CONGRESS TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG OF THE UNITED STATES TUESDAY, APRIL 20, 1999 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The committee met, pursuant to notice, at 10:05 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the committee) presiding. Also present: Senators Ashcroft, Smith, Leahy, Kennedy, and Feingold. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH The CHAIRMAN. Good morning. This morning we are going to hear testimony concerning Senate Joint Resolution 14, the Flag Protection Amendment. This amendment is very important because the subject matter-the American flag-touches each of us on this committee very deeply. I apologize to the administration. They pulled their witness today because, as I understand it, they wanted him to be on a separate panel, and I think we should have accommodated him. So we will do that at the next hearing, and we will accommodate the administration's witness on a separate panel and do it the right way. So I apologize to the administration this morning. Let me just say that many of the flags you see displayed have special stories. These flags in the front here, we have a flag carried by the Rainbow Division in World War I; we have a flag flown over the American base in Russia during World War I; we have a flag made by a POW in World War II; and we have the flag that American troops carried when they liberated Kuwait. Americans paid a high price for these flags and for the ideas and the country that these flags symbolize. Let me begin by emphasizing that every member of this committee is a patriotic American. Every member of this committee loves the freedoms established by our Constitution. And every member of this committee loves the American flag that symbolizes all of those freedoms. Among the chief freedoms established by our Constitution and symbolized by the flag is the freedom of speech. Because our fore (1) fathers were wise enough to realize that freedom to speak and write one's opinions for or against particular issues was crucial to a free and lasting Republic, they took a stand in favor of free speech. They amended the Constitution to provide that "Congress shall make no law * * * abridging the freedom of speech." The American flag is the preeminent symbol of the broad freedoms established by our Constitution, including the freedom of speech. Throughout our history, the American flag has played a unique role in symbolizing not a partisan position on a particular issue, but the love of liberty and the love of country felt by the American people and by people all around this world. The American people have expressed their love of liberty by the price that they have paid for it. We have sent our soldiers, sailors, airmen, and marines into harm's way from Gettysburg to Iwo Jima, to Desert Storm, to Kosovo- each time under the American flag. We celebrate our love of independence with parades featuring the American flag, and each morning our school children pledge allegiance to the American flag. But the love of liberty does not reside merely on a battlefield, in a parade, or on a school yard. As Judge Learned Hand said, "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." The American flag symbolizes the love of liberty that Americans hold so dear in all of our hearts. It is the Government's special responsibility to foster and protect that love of liberty. When, however, the American Government itself sanctions the physical desecration of the American flag, it also sanctions the destruction of Americans' love and respect for liberties the flag stands for. The picture of the American Government sanctioning the destruction of its own preeminent symbol is worth a thousand shameful words. If the Government sanctions the destruction of the flag, the Government destroys, little by little, the love of liberty that the flag instills in us all. Without the crucial love for liberty, the flag could become a mocking reminder of the freedoms that a people used to hold dear and a country that a people used to believe in. Some say a statute would do the trick. I wish it would. In my view, however, it is clear that we can only protect the flag and its underlying liberties with a constitutional amendment that restores to the people's elected representatives that right to prohibit the physical desecration of the flag, while maintaining the right of each American to speak his or her opinions at a rally, to write his opinions to his or her newspaper, and to vote his or her opinions at the ballot box. Before and after the ratification of the first amendment, the States prohibited the physical desecration of the American flag. With State enforcement, we had little need of Federal cases addressing the right of people to protect the flag from physical destruction and desecration, because that right was founded in State and common law and understood to be consistent with freedom of speech. Then, in the 1989 case of Texas v. Johnson, a 5-4 vote of the Supreme Court broke with over 200 years of precedent allowing re strictions on destructive conduct. The narrowest majority extended free speech protection to a destructive conduct. Shocked by this ill-advised decision, Congress enacted the Flag Protection Act of 1989. In fact, Senator Biden, then the chairman of the Judiciary Committee, played a lead role in this effort, and he and Senator Leahy supported the Act as a generally contentneutral and constitutional means of protecting the American flag. Several scholars opined that the Act would pass constitutional muster. Indeed, the statute would have passed muster under traditional first amendment jurisprudence. In United States v. Eichman, however, the Supreme Court struck down the Flag Protection Act of 1989, rejecting the statutory solution. When presented with the option of protecting the flag with an amendment or with a statute, the Supreme Court has made a choice for us-made the choice for us, really. Proposed flag protection statutes could not begin to pass constitutional muster under the Supreme Court's new precedent because the statute specifically targets the American flag for protection and relies on the "fighting words" doctrine for its validity. While there are very few persons who say that a statute is viable, the clear reality is that it is not. Thus, the only legally effective means of protecting the physical integrity of the American flag is a constitutional amendment. The amendment I propose contains only 17 words: "The Congress shall have power to prohibit the physical desecration of the flag of the United States." This year, with a record total of 57 original cosponsors, Senator Cleland and I introduced the amendment as Senate Joint Resolution 14 on March 17. The amendment has already been called for by 49 States and has the support of nearly 80 percent of the American people. The amendment, however, is not self-executing in the sense that it does not describe the specific types of physical destruction that will be prohibited. Instead, that task is left to Congress. Over 90 Members of the Senate, including the ranking member and Senator Biden, voted for the Flag Protection Act of 1989 because they believed it was clear and constitutional. So be it. The statute remains clear, and this amendment will make it constitutional. I propose that we use the Flag Protection Act of 1989, now codified at 18 U.S.C. 700 as the implementing legislation for the Flag Protection Amendment. Although I did not support this bill in 1989 because I correctly believed it would be struck down under the new rule announced in Texas v. Johnson, 91 other Senators did. Thus, all of the arguments in favor of that statute-its form of content neutrality with respect to particular issues, its narrowly tailored application, and its complete respect for the freedom of speech, both oral and written-can come to fruition if this amendment is ratified. I agree with my colleagues that we need not alter the Bill of Rights. Instead, we should restore its meaning as it existed for more than 200 years. I know that members on both sides of the aisle have deep feelings on this issue, as do I. Freedom of speech is essential to the proper functioning of our democracy, and the love of that freedom, as symbolized by the American flag, is essential to the long-term survival of our democracy, at least in my opinion. By allowing the |