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Mr. SCOTT. No, no, we already agreed that burning the flag was okay. You can't have it both ways. You said the American Legion, retiring a worn-out flag, can burn it. That's okay.

Major BRADY. Yes, but that's conduct.

Mr. SCOTT. That's content, okay. Now we're understanding where we're going. If you say something nice—am I right, if you say something nice and respectful as you burn the flag, you want that to be okay. If you say something insulting while you burn the flag, you want that to be a criminal act, is that right?

Major BRADY. I think it depends on the condition of the flag. I don't know really where you're going, but if you burn a flag, a perfectly good flag, that should not be legal according to the Constitution. That is not speech. Whatever you say is fine.

Mr. SCOTT. How about let's get to disrespect and desecration. Is violating the United States Code title IV desecration?

Major BRADY. You've got to help me, Professor Parker. I don't know where this guy is going. I don't know what that is.

Mr. PARKER. Does that have to do with the flag etiquette? Mr. SCOTT. That's the flag code. If you violate the flag code, is that desecration?

Lieutenant SCANNELLA. If I can help you here, I did some extensive research on the flag considering my involvement with it. United States Code clearly states that when the flag is no longer a fitting emblem for this country, then it should be destroyed, preferably by burning, when it is no longer a fitting emblem.

Mr. SCOTT. Okay. Tell us how—you're saying it's okay to burn the flag as long as you're saying something respectful in a ceremony

Lieutenant SCANNELLA. No, sir, I did not say that. No. When it is no longer a fitting emblem. When a flag needs to be retired

Mr. SCOTT. Then it can be burned, is that right? I mean, I only have 5 minutes. It's okay to burn the flag as long as you're saying something respectful when you burn it

Lieutenant ŠCANNELLA. No, sir.
Mr. SCOTT.—if it's worn out.

Lieutenant SCANNELLA. No, sir, not according to the—not according to the United States Code.

Mr. SCOTT. If it's worn out and you burn the flag and say something respectful, it's okay. That's your testimony.

Lieutenant SCANNELLA. My testimony is just what I read
Mr. SCOTT. And if it's worn out-
Lieutenant SCANNELLA.—from the code.
Mr. SCOTT. And if it's worn out-

Lieutenant SCANNELLA. When it is no longer a fitting emblem, it
should be destroyed, preferably by burning.
Mr. SCOTT. Okay.
Lieutenant SCANNELLA. You can interpret that-
Mr. SCOTT. Wait a minute
Lieutenant SCANNELLA.—the way you choose.

Mr. SCOTT. And suppose you say something insulting while you destroy a worn-out flag.

Lieutenant SCANNELLA. We're here to clarify that. That's why we're here, to make that illegal.

Mr. SCOTT. Illegal, okay. So we agree.

Lieutenant SCANNELLA. Yes, sir. No, we don't agree.

Mr. SCOTT. Well, we don't agree on what we're going to do with the act

Lieutenant SCANNELLA. No, we don'tMr. SCOTT.—but you keep switching back and forth. It's a very simple question. If you

Lieutenant SCANNELLA. I believe I've answered your question, sir.

Mr. Scott. Well, you certainly have.
Mr. CHABOT. The gentleman's time has expired.

Mr. Scott. May I ask consent for one additional minute, Mr. Chairman?

Mr. CHABOT. Without objection.

Mr. SCOTT. Title IV of the U.S. Code says, flag and seal, seat of Government and the States, and goes on and on about the proper way to display the flag, use the flag, respect for the flag. Title IV of the U.S. Code, section 8, subsection D says, and I quote, “The flag should never be used as wearing apparel." You're familiar with that part of the U.S. Code, anybody? Is the gentleman in the front row desecrating the flag, wearing it as wearing apparel? Mr. PARKER. Could I respond, sir? Mr. CHABOT. Yes. Major BRADY. It's not a flag. Mr. SCOTT. Oh, it's not a-well, what is a flag?

Major BRADY. The flag is clearly, clearly defined, and in fact, it's defined by the Congress. A fifth grader knows what a flag is.

Mr. SCOTT. So it's a flag if it looks like a flag?
Mr. CHABOT. The gentleman's time has expired.

The gentleman from Tennessee is recognized for 5 minutes. Would the gentleman yield to me for just 1 minute, for not even a minute

Mr. JENKINS. Yes, Mr. Chairman.

Mr. CHABOT.—for just a moment? Thank you. I appreciate the gentleman yielding.

Just to clarify this, I'd like to read what it is that we are talking about. It's just a few words. It says, “The Congress shall have power to prohibit physical desecration of the flag of the United States.” So that's all this says. There are, as we know, ceremonies that occur in veterans' organizations periodically around the country to respectfully destroy a flag when it has become worn out, and I think that that is clearly, and common sense differentiates that from someone in some sort of demonstration—I don't even want to discuss what has happened during certain times at certain demonstrations with the flag, but among other things, sometimes they are burned. That's very different from a veterans' organization that is destroying a worn-out flag.

I thank the gentleman for yielding and the gentleman is now recognized.

Mr. JENKINS. Thank you, Mr. Chairman. I don't have any questions. This is my fourth term in the House of Representatives and we've had this discussion every session that I've been here. I concluded long ago that any questions I might ask would not change the opinion of those whose opinions differ from mine, and certainly the questions of others will not change my opinion. I'm ready to

support this amendment, again, for the fourth time, and I will yield the balance of my time to the Chairman if you have additional questions.

Mr. CHABOT. I thank the gentleman. I thank the gentleman for yielding. The only thing that I would comment, when the gentleman talks about the discussions on one side or the other aren't going to persuade the folks on the other side whose minds are already made up, that's probably true, not only on this issue but many of the issues that we deal with in Congress, particularly in this committee. But I thank the gentleman for yielding and I'd like to get to the mark-up relatively soon, so I'm not going to take up any more time for questions. The gentleman's time is expired.

The gentleman from North Carolina, Mr. Watt, is recognized for 5 minutes.

Mr. WATT. Thank you, Mr. Chairman. I don't think I could have said it any more eloquently than my friend from Tennessee. I've been here-how many times have we dealt with this, six, seven, eight

Mr. CHABOT. You've been here longer than me.

Mr. WATT. Well, I've been here 11 years. I'm just not sure we've dealt with it every single year that I've been here. But if we've done it every year that I've been here, we've done it 11 times, and there are two things that I've found from the prior debates.

Number one is the same thing that my friend, Mr. Jenkins, said. There are strongly held beliefs on both sides of this issue and probably none of the testimony is going to change any opinions.

But the second thing I think we established three or 4 years ago at least was that this is not an issue that deals with patriotism. I don't think there's an unpatriotic person at this witness table here, and I don't think there's an unpatriotic person in the audience here. But I also don't think there's an unpatriotic person in the Congress. For those who make this issue a substitute for-regardless of which side you're on, for whether you are a patriot or not, I think this is really a discredit to the debate and to the deeply-held beliefs that people on both sides of this issue have had.

So I don't have any questions of the panelists. I just hope that when we get to the floor, we can have the kind of debate that I think we succeeded in having 1 year, I think it's two or 3 years ago. We really had a high-level, civilized debate where all of us really looked like patriots and it didn't deteriorate into a name-calling contest where one side was calling the other unpatriotic and the other side was calling the other side unpatriotic.

Maybe I'll say more about that when we get to full committee, but I just think we ought to go on and do what we've got to do. Even though Mr. Jenkins and I are on opposite sides of where we come out on this issue, I think his comments really speak for me on this issue. I yield back. Mr. CHABOT. Thank you. The gentleman's time has expired. The gentleman from Indiana, Mr. Hostettler, is recognized. Mr. HOSTETTLER. Thank you, Mr. Chairman. My questions will go more to the issue of why Congress is here today deliberating on this very important issue, a provision which I strongly support, even though I generally do not support amending the Constitution.

I think that the fact that we are amending the Constitution to protect one of the true symbols of America is vitally important.

We have come here today because five individuals in black robes have determined that this is protected speech, while I think, Professor Parker, you talked earlier about the idea of cross burning was not protected speech. And so the finicky, haphazard opinions of the five individuals have brought us to the point where Congress is deliberating and two-thirds of us have to pass it in the House and the Senate because five people have decided that this type of behavior is a different type of behavior than other types of behavior, and that's troubling to me.

I think it was troubling to the Framers of the Constitution, too, in the discussion between the Anti-Federalists and the Federalists, the idea that the judiciary, that life-appointed, unaccountable to the populus at large would make such profound impact statements on policy, and policy essentially in our country whereby the will of the majority that should be generally exercised through the legislative process, through the Article I branch, that we find ourselves here not being able to do it by normal law making procedure but by the super-majority that was discussed earlier.

My question, Professor Parker, you probably understand the writings of the Anti-Federalists and the Federalists with regard to the Constitution, the idea that we are here today because five people in black robes have decided that we must come here and that two-thirds of the House and two-thirds of the Senate must confer to amend the Constitution when they can, in fact, say that this type of behavior is protected and this type of behavior is not protected by the Constitution.

Do you find that the concerns of the Anti-Federalists are being realized today as we meet and that, in fact, some of the folks that our first witness talked to, folks like Hamilton and Madison and Jay and Washington, when they penned the Constitution, when they said Article I, Section 7 is how we make laws and Article V of the Constitution is how we amend the laws, are those concerns that some of the people at the founding of this country had with regard to the judiciary, are those, in fact-are we realizing them today, just today?

Mr. PARKER. Yes, sir. I believe we are, actually. I don't believe either the Federalists or the Anti-Federalists had in mind the kind of very active judicial review that we've become familiar with over the last century. Remember, it really only began around 1900. Up until then, the Supreme Court only two or three or four times intervened in a major way in American political life.

In the 20th century, the Court sometimes, of course, played an absolutely vital role. Think of Brown v. Board of Education. On other occasions, for decades, it has now seemed to have done bad work for America. Think of the first four decades of the 20th century.

Most recently, the Court, as I'm sure you're aware, sir, has become more and more self-confident, shall we say, announcing that it is the voice of the Constitution, and I wouldn't be surprised if Congress would have something to say about that.

Mr. HOSTETTLER. But even in, for example, you mentioned Brown v. Board of Education, in the practical workings of Govern

ment subsequent to Brown v. Board and then Aaron v. CooperI watched recently on a C-SPAN program a discussion by a professor from the Kennedy School of Government—actually, I don't have his name, but highlighted the fact that, in fact, even with Brown v. Board, that it was actually ultimately the act of Congress in the Civil Rights Act of the first half of the 1960's that actually gave power to the idea that there should be equality in America.

And so it was through those legislative initiatives, because the Court, in fact, even as late as the 1950's and the 1960's really didn't have the power, as they don't today, to enforce their own decision, and so Congress had to move and had to act to make civil rights a reality in this country, isn't that

Mr. PARKER. That's absolutely true and that fact is often forgotten, that there was not much real desegregation of the public schools until the end of the 1960's and it was Congress that did the heavy lifting.

Mr. HOSTETTLER. Okay. And so, once again, we find ourselves, the will of the majority of the people through the regular legislative process thwarted by this perception that five people in black robes must bring about change with two-thirds of the vote of the House of Representatives, two-thirds of the vote of the Senate, in order to amend the most sacred document in America—well, next to the Declaration of Independence, I will say—to amend this great document in order to do what a vast majority of Americans believe is common sense, and that is to protect a symbol that many veterans are awestruck by when they come in contact with it, and

Mr. CHABOT. The gentleman's time is expired, but I didn't mean to cut you off there, but

Mr. HOSTETTLER. No, no. I was pontificating, Mr. Chairman [Laughter.]

—and I apologize for thatMr. CHABOT. I didn't say that.

Mr. HOSTETTLER. That's right. But I yield back the balance of my time.

Mr. CHABOT. The gentleman can respond to the question. Mr. PARKER. I would just say that oneMr. CHABOT. I kept trying to find a pause there somewhere, John. I didn't want to interrupt you. [Laughter.]

Mr. HOSTETTLER. That's why I don't have any periods in any of my statements, Mr. Chairman. [Laughter.]

Mr. CHABOT. You may respond.

Mr. PARKER. One function of a constitutional amendment is to send a message to the Supreme Court, a message that I think they could use hearing at this point.

Mr. CHABOT. Thank you very much. The gentleman's time is expired.

The gentleman from Florida, Mr. Feeney, is recognized for 5 minutes. Mr. FEENEY. Thank you, Mr. Chairman.

The first thing I'd like to do is to associate myself with Mr. Watts's remarks, and that is especially on sensitive issues like this, ad hominem arguments rarely shed much light, but often generate a lot of heat, and I happen to agree with him greatly.

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