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FLAG PROTECTION AMENDMENT

WEDNESDAY, MAY 7, 2003

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON THE CONSTITUTION,
COMMITTEE ON THE JUDICIARY,

Washington, DC. The Subcommittee met, pursuant to notice, at 3:44 p.m., in Room 2141, Rayburn House Office Building, Hon. Steve Chabot (Chairman of the Subcommittee) presiding.

Mr. CHABOT. The committee will come to order. I first of all want to apologize for us not starting on time, but we had a whole series of votes on the floor. So even though I apologize, it was unavoidable and we have to be over there for those votes.

The Subcommittee is convened this afternoon to hear testimony regarding H.J. Res. 4, a proposed amendment to the Constitution authorizing Congress to prohibit the physical desecration of the American flag.

Today, the American-excuse metoday, the flag of the United States of America is probably the most recognized symbol of freedom and democracy in the world. Whether in small conflicts or world wars, whether atop the United States Capitol or simply hanging from a neighbor's porch, whether sewn to the sleeves of brave men and women sent into battle or draped across caskets as some of these brave servicemen and servicewomen are escorted home, the flag has always persevered and survived to represent the values that all Americans hold dear.

No one can forget the image of the New York City fire fighters raising the flag to the top of a pole in the midst of rubble and degree at ground zero where the World Trade Center towers once stood. It is this symbolism and resilience that has made the flag one of the most beloved and cherished symbols in our nation's history.

The movement to pass legislation prohibiting the desecration of the American flag began in the late 1800's, with all 50 States having flag desecration laws on the books by 1932. In 1968, the Federal Government passed its statute prohibiting such conduct. Thus, for over half a century, every single State in the Union, and later the Federal Government, outlawed this type of conduct without constitutional objection.

However, in 1989, so fairly recently, the United States Supreme Court in one fell swoop, and by the narrowest of margins in a fivefour opinion, effectively invalidated all State and Federal laws that prohibited flag desecration. The Court concluded that the burning of an American flag as part of a political demonstration was ex

pressive conduct, protected by the First Amendment. Congress responded to the Supreme Court's decision almost instantaneously, through bipartisan and overwhelming support, with the enactment of the Flag Protection Act of 1989. However, the following year, the Supreme Court again, in a five-to-four decision, held the Flag Protection Act unconstitutional in United States v. Eichman.

Because of these two narrowly-decided Supreme Court decisions effectively rejected the command of an overwhelming majority of the American people to outlaw such conduct, the only option remaining for the American public is to amend the Constitution in order to restore protection to this most hallowed and respected symbol of our nation's unity, solidarity, and strength.

Some would argue that this proposed amendment would erode First Amendment protections that all Americans enjoy. I disagree with this argument, as do the majority of Americans. The Flag Protection Amendment is consistent with the First Amendment while reflecting society's interest in maintaining the flag as a national symbol by protecting it from acts of physical desecration. There is absolutely nothing in the amendment proposed today that will prevent individuals from speaking out against the United States, its policy, its people, its flag, or anything that it represents. This amendment simply prohibits acts of physical desecration of the nation's most enduring and revered symbol, nothing more.

In conclusion, some have called our country the melting pot of the world. Our nation is unique in its diverse composition of ethnicity, race, religion, nationality, and language, all of which personify our citizenry. While we all may not share the same background, there is one unifying symbol in which we all take pride, our flag.

Through this amendment, we are protecting not just a piece of cloth, but rather a symbol that epitomizes this country and all for which it stands.

The Flag Protection Amendment has been supported by more than two-thirds of the House of Representatives on four separate occasions, and by more than just a simple majority of the Senate on a number of occasions. In addition, an overwhelming majority of Americans, nearly 80 percent, support the adoption of this amendment, with all 50 State legislatures having adopted resolutions calling on Congress to approve such an amendment and send it to the States for ratification. 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 proposal, this proposed amendment to the Constitution.

I will yield my time to the minority side, if there is an opening statement, or do you want to wait until Mr. Nadler comes, or

Mr. SCOTT. Mr. Chairman, I would ask unanimous consent that the gentleman from New York, the Ranking Member, be allowed to make a statement when he arrives.

Mr. CHABOT. Without objection, we will allow him at an appropriate time to make an opening statement.

Would the gentleman from Virginia wish to make a statement of any sort other than that?

Mr. Scott. No, Mr. Chairman, other than welcome the witnesses and we will get into questions. I appreciate the opportunity to be here.

Mr. CHABOT. Thank you. Are there any on the majority side that would like to make an opening statement? Okay. If there's no others, we will at this time introduce our panel for this afternoon, and we have a very distinguished panel. What I would like to do is at this point yield to the gentleman from South Carolina, Mr. Janklow, the former Governor of South Carolina

Mr. JANKLOW. No, Dakota

Mr. CHABOT. Excuse me, South Dakota, to introduce one of our distinguished Members this afternoon.

Mr. JANKLOW. Thank you very, very much, Mr. Chairman, and thank you, Members of the Committee, and you, Mr. Chairman, for giving me this privilege to come before your committee, a committee of which I'm not a Member, for the purposes of making an introduction.

I'd like to introduce to this committee a friend of mine and a friend of South Dakota's and America's. He is a gentleman who served in the Republic of Vietnam as a United States Army Major, as a helicopter pilot, and I'm going to read rather than to speak extemporaneously. I'm going to read what was written about him. Major Brady distinguished

himself while serving in the Republic of Vietnam, commanding a UHIH ambulance helicopter. He volunteered to rescue wounded men from a site in enemy-held territory which was reported to be heavily guarded and to be blanketed by fog. To reach the site, he defended through heavy fog and smoke and hovered slowly around a valley trail, turning his ship sideways to blow away the fog with the backwash from his rotor blades. Despite the unchallenged, close-range enemy fire, he found the dangerously small site, where he successfully landed and evacuated two badly wounded South Vietnamese soldiers.

He was then called to another area, completely covered by dense fog, where American casualties lay only 50 meters from the enemy. Two aircraft had previously been shot down and others had made unsuccessful attempts to reach this site earlier in the day. With unmatched skill and extraordinary courage, Major Brady made four flights to this embattled landing zone and successfully rescued all of the wounded.

On his third mission of the day, Major Brady once again landed at a site surrounded by the enemy. A friendly ground force pinned down by enemy fire had been unable to reach and secure the landing zone. Although his aircraft had been badly damaged and the controls actually partially shot away during his initial entry into the area, he returned minutes later and rescued the remaining injured.

Shortly thereafter, obtaining a replacement aircraft, Major Brady was requested to land in an enemy mine field where a platoon of American soldiers was trapped. A mine detonated near his helicopter, wounding two crew members and damaging his ship. In spite of this, he managed to fly six severely injured patients to medical aid.

Throughout that day, Major Brady utilized three helicopters to evacuate a total of 51 seriously wounded men, many of whom

would have perished without prompt medical attention. Major Brady's bravery was in the highest tradition of the military service and reflects the great credit upon himself and the United States Army. The result

of that action that day in Vietnam, Major Brady was awarded the Congressional Medal of Honor by this Congress and the people of the United States.

Mr. Chairman and Members of the Committee, now Major General Brady, retired, spends all of his time working to get an amendment passed to the U.S. Constitution that protects this flag, protects this flag under which these men fought and died, protects this flag which flew over the bases from which these men came and the country from which these came. But more than anything else, Major General Brady epitomizes what we in America call "the right stuff,” a man who was willing to lay down his life, if necessary, to save other people.

Time magazine in a story about him, Mr. Chairman, reported that Major Brady and his unit were responsible for rescuing approximately 5,000 wounded American and allied soldiers during the Vietnam War.

It gives me a great deal of pleasure to present to this committee Major General Patrick Brady.

Mr. CHABOT. Thank you. General, it is an honor to have you here this afternoon. Before we get to your testimony, we are going to introduce the other members of the panel, and we appreciate that very much, Mr. Janklow, and it is certainly an honor to have you as one of our panel members this afternoon.

The gentleman from New York is recognized for the purpose of making an opening statement if he would like to do it at this time.

Mr. NADLER. I would, indeed. Thank you, Mr. Chairman. Here we go again with the annual Republican rite of spring, a proposed amendment to the Constitution and 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 needs Congress to protect it.

The flag is a symbol of a great nation and of the fundamental freedoms that have made this nation great. If the flags need protection at all, it is from Members of Congress who value the symbol more than the freedom that the flag represents.

People have rights in this country that supercede public opinion, even strongly held public opinion. If we do not preserve those rights, the flag will then have been desecrated far beyond the capability of any individual with a cigarette lighter. But we will go through this exercise anyway.

I wonder if I am the only Member of the Subcommittee who would be willing to simply read last year's debate into the record, allow any new Members to say their pieces, consider any amendments, and move on, since the debate doesn't change from year to year.

Let there be no doubt this amendment is aimed directly at unpopular ideas. Current Federal law says the preferred way to dispose of a tattered flag is to burn it, but there are those who would

criminalize the same act if it was done to express political disagreement.

Current Federal law, which is constitutionally void, also makes it misdemeanor to use the flag for advertising or on packaging. How many Members of Congress, used car dealers, fast food restaurants, and other seemingly legitimate individuals and enterprises have engaged in this act which our laws define as criminal desecration? If I recall, at the last Republican National Convention, probably the Democratic Convention, but I recall at the Republican Convention seeing people with flag-designed sandals, t-shirts, and even shorts. 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 jail.

I am proud to welcome an officer of the Port Authority Police to our committee. No New Yorker who lived through that day, the days after, and the memorials we all attended could ever forget their service and how moving it was to see that flag. I am, however, getting a bit tired of that act of terrorist barbarism being used to justify a plethora of political causes. As the President has often remarked, the people who murdered 3,000 of my neighbors did so because they hated our free society. But to use that atrocity to justify a curtailment of our American freedoms strikes me as a desecration of their memory.

Similarly, many people marched against the war, objected to the political use of their loved ones' deaths to justify the war. For example, Rita Lasar became angry when the attacks were used to justify the war. Her brother died in the North Tower, refusing to leave his quadriplegic coworker whose son was a member of Rescue Squad 288 and who died in the Trade Center said, "He would not have wanted innocent people killed in his name.” She was later arrested for her dissent against the war with Iraq.

So people who claim the right to speak for the dead of September 11 show a bit of modesty. I represent that community in Congress and I can tell you they do not all hold the same views on this issue. In fact, there is probably more opposition to this proposed amendment in my district than almost anywhere else in this country.

People have died for the nation and the rights which this flag so proudly represents. We should not start destroying the way of life for which they made the ultimate sacrifice.

Let me just add one comment that what I mean when I say that this amendment is aimed not really at destroying the flag or burning the flag, it is aimed at unpopular political opinions. No one would think, no one would think that if someone made a movie about World War II and showed actors playing Nazi soldiers burned an American flag, portraying what Nazi soldiers did during the war, no one would arrest those actors and say they did a terrible thing. But if someone in a demonstration against the policy of whoever the current Administration is burned an American flag, that is presumably what this amendment is aimed against.

So the real sin is not burning the flag. Burning the flag in a movie is okay. Burning the flag to express unpopular opinions should be made criminal, and that is what this amendment gets at.

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