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But having said that, any time I get an opportunity to ask questions of a Harvard law professor as opposed to the other way around, I'm going to take it. I'm intrigued and actually fascinated by your argument that there is a substantive difference between a restorative amendment to the Constitution as opposed to an undermining amendment, and actually, to follow up with that, you know, after Marbury, the Court has announced that it is emphatically within the province of the Court to say what the law is, but a lot of us happen to believe that, ultimately, what the Court says the Constitution means is correct when they were correct, and when they were wrong, the Constitution still speaks for itself. And after all, all of us in the executive and the Congressional and in the judicial branch take the same oath to uphold the same Constitution.
Historically, I think it was President Jackson that took issue with the Supreme Court's decision in the National Bank case and actually vetoed on constitutional grounds where he stood squarely against the decision of the Supreme Court, and, of course, Lincoln in his famous debates with Douglass took issue with the Court's decision in the Dred Scott case.
Here, we have an instance where 48 or so of the 50 States' duly sworn legislatures agree to uphold the Constitution, understood what free speech was, and nonetheless passed a law prohibiting flag burning. We've got a case where we've got 200 years of Federal jurisprudence that never struck down flag burning and we've got a five-four majority that basically says that free speech includes not just speech, but includes actions, including burning the United States symbol.
So if you could deal with the I'm fascinated by the issue of the difference between a restorative amendment and an undermining amendment, if you could elaborate a bit on that.
Mr. PARKER. As you suggested, sir, the position that you're elaborating was Lincoln's position. It was Jefferson's position. It was Jackson's position. It was Franklin D. Roosevelt's position. Let's take Lincoln in particular.
Throughout the debates of the 1850's, Abraham Lincoln said that he, of course, respected the Supreme Court. He respected its decision in the Dred Scott case, but he believed it was wrong. He believed that he had
Mr. FEENEY. Well, didn't he say that, not necessarily that it was wrong, but that it was limited to the effect on the parties themselves and not to others?
Mr. PARKER. Well, he did say that, but he went farther. He said it was just a wrong and mistaken interpretation of the Constitution and he clearly took the view that elected officials, politicians, and citizens have a right to disagree with the Court, to interpret the Constitution themselves, just as you said.
Mr. FEENEY. And finally, and I know the chair wants to get up to mark-up, as we all do, but finally, is there anything if we pass this amendment that would prohibit any American from expressing through actual speech his or her position on any given issue in the political forum today?
Mr. PARKER. Absolutely nothing. This amendment has only to do with physical desecration, not words. That's where I would differ
with Mr. Scott, with Congressman Scott. It's strictly acts, not words.
Mr. FEENEY. I thank you and yield back the balance.
The gentleman from Virginia, Mr. Forbes, is recognized for 5 minutes.
Mr. FORBES. Thank you, Mr. Chairman. Normally, I follow the good advice from my friend from Tennessee, but in this situation, I want to take just a few minutes and tell you why I think this amendment is so important.
You know, when you hear it discussed, people love to blend apples and oranges. They love to give you red herrings that you try to chase so you don't focus on the real issue that is before us.
It just baffles me to say that you're going to refuse to pass an amendment to protect the American flag because we don't give adequate services to veterans. What we need to be doing is doing both, and we can do both.
To ask if we would prosecute actors for portraying flag burners in a play is just as ludicrous to me as saying we would prosecute actors portraying murderers in a play if they were—just as if they were murderers.
And some of the same people—I'm not talking about particular people in this room, but who would say we need to protect flag burning and obscenity are the first that say we should limit individuals in spending their money to have political speech. Can you imagine some of these same individuals, if we said an individual ought to be able to fire a cannon on his own property or fire a gun in the city limits if he wanted that as an expression of freedom of speech?
Nobody here, nobody questions that if this amendment is passed by the American people, it will be just as much a part of a Constitution as any other provision. The question, therefore, is simple. Is the American flag of such importance to the American people that their elected representatives should have the right to protect the desecration of that flag?
I believe the people should decide. I think, overwhelmingly, they would say yes, and let me tell you why I say yes. It's because of my 17-year-old son.
My 17-year-old son loves one thing in life, basketball, that's it, nothing else. He doesn't like politics, doesn't like anything else. But a week ago, I had something come in the mail where I found that he had won the number one essay in Virginia on patriotism, and I read it, and let me tell you what he said.
He said he was an ordinary teenager who talked about ordinary things. His friends talked about girls, how lousy their basketball coach was, fixing up his '81, 1981 Jeep. But then he talked about his grandfather, who was also very ordinary, he said, because when he was 19 years old, he did two things. He married his grandmother, but then he also went to a little place called Normandy, and a few weeks after the invasion when he was there, this 17year-old boy said, “I can't imagine how you can get 19-year-old boys to run off of ships and boats and landing vehicles in the face of machine guns firing at them.”
He talked about September 11, when you would walk around Washington, DC, with smoke coming up at the Pentagon, and the only thing that would really unite this country was that the American flag was still flying strongly over the Capitol and across this great city.
And then he told something else. If you look around this room and you see the veterans in here, and I don't mean to offend any of them, I want to just tell you this, though, most of the time when you look at people, you've got a frown and you've got a snarl. mean, that's him, not me. But, he said, the one thing that will bring a tear down the eye of the most hardened veteran is the American flag and when they see that.
And he said that the thing that kept him from being ordinary, the thing that united him with his grandfather and the thing that united him with all those people who did heroic things on September 11 was when he could hold his flag up high.
And I would just suggest to all those who oppose this amendment that this is something the American people believe is worth protecting and we should pass this amendment to be able to give the Congress the right to do that. Thank you, Mr. Chairman.
Mr. CHABOT. Thank you very much. [Applause.]
Thank you, Mr. Forbes. All the Members have had an opportunity now to ask their questions, so I want to thank the panel for coming this afternoon and testifying. I think all four of you did an excellent job and we appreciate your willingness to come in and we particularly appreciate those of you who have given such—that have served your country so honorably, and thank you very much for being here.
At this time, we are going to move into the actual mark-up of this bill, so you are welcome to stick around. This should not take a terribly long period of time, but I guess our clerk will be moving down to the table down here to take up, so if you all want to move back into the audience. If anybody has to leave, they are welcome to do that, but we are going to move right into the mark-up.
[Whereupon, at 5:13 p.m., the Subcommittee proceeded to other business.]
MATERIAL SUBMITTED FOR THE HEARING RECORD
PREPARED STATEMENT OF THE CITIZENS FLAG ALLIANCE
What We Believe
In 1989 the Supreme Court, in response to a flag burning by a communist, amended the Constitution by inserting flag burning in the Bill of Rights. Their decision took away a fundamental right of the American people, a right we possessed since our birth as a nation, the right to protect our flag. We believe that decision was an egregious error and distorted our Constitution. We do not believe the freedom to burn the American flag is a legacy of the freedoms bestowed on us by Madison and Jefferson and Washington and the other architects of our Constitution. To distort the work of these great men unable to defend themselves, to put flag burning side by side with pornography as protected speech is outrageous.
We believe that some elements in our society seek to amend the Constitution through the courts out of the bright light of the public square where they would surely fail. The ACLU has said they are the guardians of the Constitution and that their hope for their agenda is through the courts. We believe that our hope is in the Constitution as defined by our Founding Fathers and that we the people are the guardians of the Constitution. One judge said the Constitution is what the courts say it is! We believe the Constitution is what the Founding Fathers said it was and cannot be amended with out the will of the people.
President Lincoln said: “If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers." Abraham Lincoln also warned, "Don't interfere with any thing in the Constitution. That must be maintained, for it is the only safeguard of our liberties."
Many Americans have raised their right hand and sworn an oath to protect and defend the Constitution from all enemies both foreign and domestic. We believe that all Americans who put their right hand over their heart and recite the Pledge take that same oath. Both the oath and the pledge are taken in the presence of Old Glory to emphasize that our flag is the symbol of our Constitution. We believe that the courts have interfered with the Constitution by calling flag burning speech and that we the people must exercise our right to rule by insuring that the Court's decision is not irrevocably fixed.
We believe that legalizing flag burning, in addition to disfiguring the Constitution, also raises values issues and questions the kind of people we have been and want to be. We believe that our laws should reflect our values. Flag burning is not a value of the American people.
We believe the highest form of patriotism is service to our children and a premier worth of respect for the flag is the values it teaches our children, the values embedded in our Constitution as embodied by Old Glory. We agree with Pearl Buck who describes how precious a symbol the flag is to the treasure that is our children and how important it is to their development. She also said: “Children are our national treasure. With what measure we mete to them in their childhood, they will mete to our nation in their lifetime.” We believe our children should be raised as patriots full of respect for the flag and the constitutional values it represents. How can they respect something they are free to burn?
We believe symbols are indispensable in a democracy. They have been called the natural speech of the soul. Our gratitude for the great bounty that is America is expressed through symbols: Grave stones, obelisks, walls and the greatest of all symbols, Old Glory. Symbol is from a Greek word meaning a half token which when united with its other half identified the owner. It is meant to recognize something far more elaborate than itself. That something, the other half token of the flag, is the Constitution and we the people are the owners. 9-11 reminded all Americans of what veterans have always known: the unifying, comforting and inspirational magic of Old Glory, its unique and indispensable value to our society.
Thomas Jefferson said: "Democracy is cumbersome, slow and inefficient, but in time the voice of the people will be heard and their latent wisdom will prevail." We believe that all Americans once they realize that our Constitution was never intended to include flag burning will be outraged, energized and mobilized against those who deliberately or inadvertently despoil that cherished document. We believe that if we persevere, eventually the voice of the people will be heard and our Constitution will be restored. The courts are forcing us to accept flag burning, we are not trying to force the people to love Old Glory, we are trying to force the courts to restore the truth to our Constitution.
We believe our battle for our flag is a battle for our Constitution, our concern is not those who desecrate the flag; our concern is those who desecrate our Constitution by calling flag burning speech. If we did not act on our belief, and correct the errors of the Court, we would violate our oath and our pledge, we would be cowards not worthy of the sweat and blood and tears of those who gave us our Constitution and all we have. We could not face the greatest generation, or the silent generations, we could not face our children, we could not face ourselves. This is a sacred debt to our Founders, to America's nobility our veterans, to our patriots and to our children.
Fact and Fiction on the Right of the People to Protect Old Glory
Fiction: Burning the American flag is protected "speech" as defined by the First Amendment to the Constitution.
Fact: Flag burning is not speech as defined by our Founding Fathers in the First amendment. The First Amendment reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances." James Madison, who wrote the First amendment, condemned flag burning as a crime. Thomas Jefferson agreed with Madison and made clear in his writings that “speech” in the First Amendment meant the spoken word, not expression or expressive conduct of any kind. To say otherwise made press a redundancy. In fact, the words expression or expressive conduct are not in the Bill of Rights. And for good reason. Activist judges have added them to the Constitution in order to promote their own political agenda. Since our birth as a nation we the people have exercised our right to protect our flag. This right has been confirmed by every Chief Justice of the United States and Justices on 5 Courts in the last century who denied that flag burning was "speech.” This fact