Senator DURBIN. Not necessarily every member is a lawyer. I happen to be a recovering one. Mr. PARKER. So then as you know all too well, what lawyers is do is work with the ambiguity of words in the laws. Senator DURBIN. I am trying to take this to a point, and you are consistent. If I spray-paint "death to America," it defiles the flag. If I spray-paint "God bless America," it defiles the flag. What if I spray-paint my name on the flag? Mr. PARKER. Again, I was going to point out that in criminal law the intent is always important, as you know. The mens rea requirement is virtually considered essential to criminal law. So you would look at the intent, as we do under any criminal law. Senator DURBIN. But isn't it a fact that is where the Supreme Court said we have got a problem here, trying to figure out what the intent in the mind was of the person? Mr. PARKER. But then the whole criminal law would be Senator DURBIN. Well, let me tell you how far this goes. If you raise a question of whether my spray-painting my name on the American flag is defiling the flag, we have a photo here of the President of the United States signing his name to a flag. Do I think he defiled the flag? No, I don't. But, by definition, now we have got to take this to a prosecutor. Do you see how, when we have to delve into the mind, how far you are going and what you mean as to whether we are defiling the flag, we start getting into questions of interpretation here? And my question to you and to all the panel is do you really want to put this in the Constitution? Do you want to use words in the Constitution that are going to lead us into all of these questions? There are many patriotic people that are sitting in this audience wearing neckties made out of American flags, some wearing sweaters with American flags. I think you are just as patriotic as the next person, maybe more so. But is that defiling it to use it in a commercial way? Mr. PARKER. It all would depend, as in any criminal law, on the intent. In the Act of 1989, the intent requirement was "knowingly." When someone does x, y or z vis-a-vis a flag, is he or she knowingly mutilating it or defacing it, or does he or she do it with a radically different intent? That is just what law is all about. There is no avoiding that. Senator DURBIN. Well, I understand that, but the point I am trying to make to you is people think this is absolutely cut and dried; this is so easy. It isn't. There are areas here which are very difficult, and that is why many of us have some reluctance to say let's change the Bill of Rights, let's put an exception in the Bill of Rights, and we think that we can take a roller to this Rembrandt and come up with a much more beautiful painting. I am not one of them. I would just say, in closing, Mr. Chairman—and I thank you for this-it is painful as an American sometimes to stand up for the rights of minorities and the right of dissent. They say things and do things which I despise. Sadly, that is one of the responsibilities of citizenship in this country to let people say things which we despise and know that they have the freedom to say them, realizing that we have enough strength in our values and our country to withstand any such personal assault on what we consider to be the values of our country. I think that is what is at stake here. Thank you. Chairman HATCH. Well, thank you, Senator. I just want to say to everybody here that there are lots of speeches that are outlawed by the law. This is a very important issue and there are two good sides to this issue. Now, I think one is far better than the other, no question about it, but there are legitimate arguments on both sides. The vast majority of the American people would like to see this flag amendment passed. And it is a very simple thing. It just gives Congress the right to do something about it, if Congress so chooses, and it gives the American people the right to pick who the Congress happens to be at the time. It seems to me that is pretty democratic. Naturally, as the author of the amendment, I am going to challenge you folks who want the amendment to get out there and work for it. We have always had over 60 votes for this amendment in the Senate, but we need 67. We have always lost by 2, 3 or 4 votes. We have a basically different Senate right now than we did the last time we tried to pass this amendment. I, for one, hope that you will really get there and really work very, very hard and get this amendment passed. Then I think Professor May, Mr. Korb and others who are opponents, Senator Durbin and others, can do the democratically politically right thing that they think is right and fight against a statute that may be passed or may not be passed. I think that statute would go through the House like blazes. In the Senate, it probably would require 60 votes. So it is not going to be an easy thing even if we pass this amendment. However, I think we would have the 60 votes. I think that is what the fear is, is that we will pass this amendment that gives the Congress the right, if it so chooses, to protect the flag, which was protected for almost 200 years before the Johnson case and the Eichman case and changed by the simple vote of five Justices on the Supreme Court. The fact of the matter is that the people ought to have a say on this, and I think one of the greatest debates that will ever occur will be if this amendment will pass the Senate and the House and be submitted to the States. Everybody in this country will be able to hear the persuasive arguments on both sides and make up their own minds. I am not quite sure what would happen. I believe 38 States would ratify this amendment within a year. But I could be wrong. I don't think so, but I could be wrong. But why not give the American people a chance to say it, rather than five Justices on the Supreme Court? Somebody has brought up the marriage problem. Well, we had 4 justices, 4 to 3, in Massachusetts, determining under the Full Faith and Credit Clause how marriage should be recognized in all 50 States. Now, some think that we might be able to uphold and maintain the Defense of Marriage Act, which was adopted by at least 38 States-I believe 39 States. But there is a real question constitutionally whether that would be upheld under the Full Faith and Credit Clause. Well, the fact of the matter is that we are going to have to face up to that problem as to what we do about that. But four activist judges up on the Massachusetts Supreme Court are going to impose their will upon every State in the Union to recognize Massachusetts same-sex marriages, whether the people want to do that or not. These are important issues. I agree with Professor Parker that it shouldn't be five Justices on the Supreme court or a split decision on the court in Massachusetts determining what everybody has to adhere to in every State of the Union. That ought to be battled out and there ought to be some way that the American people can make a decision on this themselves so that there won't be the tremendous dislocation of social justice in our society that we have had since Roe v. Wade came down on a 7 to 2 decision, as I recall. Now, I don't like judicial activism whether it is from the left or from the right. In fact, it is particularly reprehensible to me when it comes from the right because I think they ought to know better, but it is wrong either way. For those who argue that we are going to infringe on the First Amendment when, in fact, five Justices have set the tone for the whole country, rather than the American people I think that is one of the most specious arguments I have ever heard. Well, it is an important amendment. I personally appreciate all of you appearing. I respect the right to disagree here, and we have had some eloquence on the part of those who are opposed, as well as eloquence on the part of those who are in favor. I am just asking all of you as the sponsor of the amendment to get out there. Let's hustle and let's get this done this year, and then we won't have to have another one of these hearings, except for the statute. Then we can really have a democratic process to determine whether we can pass that statute. I would put the statement of U.S. Senator John Cornyn, from Texas, into the record immediately following the statement of Senator Durbin at the front of the hearing. With that, I want to thank you all for being here. I appreciate the efforts you have put in, and respect each and every one of you. For those who are on my side, let's go to work. With that, we will adjourn until further notice. [Whereupon, at 12:45 p.m., the Committee was adjourned.] [Questions and answers and submissions for the record follow.] QUESTIONS AND ANSWERS Written Follow-Up Questions to Witnesses from Senator Patrick Leahy "Letting the People Decide: The Constitutional Amendment Authorizing Congress To Prohibit Physical Desecration of the Flag of the United States" March 10, 2004 QUESTIONS FOR JOHN ANDRETTI 1. Do you agree that the flag represents all Americans and that the flag should not be used for partisan political purposes? There's no doubt that the flag of the United States is recognized globally as the symbol of the nation and its people. So, yes it does represent all Americans. But more important, it represents the things that have given the nation greatness, like the Declaration of Independence and the Constitution. Both documents give definition and identity to being an American, and the symbol attached to that identity is the flag. I fail to see how the flag could be used for partisan purposes, since most elected officials - Democrats, Republicans and others – are routinely photographed with Old Glory proudly displayed over their right shoulder. No one person or political party can say it's his or her flag. It belongs to all of us and all those who appreciate what it stands for, I think, should do their utmost to see that it is treated right. To do that, I don't believe is inappropriate, partisan or political. 2. Over the years, Senator Hatch and the Citizens Flag Alliance have brought a number of celebrities to testify on behalf of this and other versions of the flag amendment. In past years, we heard from Jon Schneider, an actor from the television program "The Dukes of Hazard" and Tommy Lasorda, a former major league baseball manager, among others. How did you come to testify before the Committee? Have you been active on this issue in the past? As you probably know, I have something of a connection to Indianapolis. It is the center for both racing and the American Legion, where their national headquarters is located. The American Legion asked me if I would testify in support of the flag amendment. I agreed. From there, the Judiciary Committee formally invited me and, as I told reporters, I was there because I believe in the amendment and have a passion for our flag. Until that time, I was not active in a large way. But now that I'm aware of the Supreme Court's decision on flag desecration I am even more for the amendment. I have to say that I was a bit embarrassed that such a significant matter was taken for granted by me. I thought that the law already, or better yet, still protected the flag. 3. As someone knowledgeable about racing and cars and in a sport so popular across America, I wonder whether you are as concerned as I with reports that gasoline prices are at an all time high and likely to get higher. I worry that Americans are going to be burdened this summer with gas prices of $2.50 or even $3.00 per gallon in some parts of the country. What do you think about this issue, and what do you suggest we do to correct the problem? Would you support use of our strategic petroleum reserve? How would you suggest putting pressure on OPEC? In all due respect, this question focuses on an issue other than the flag amendment. Although there are many valid concerns among Americans, I am not sure where the connection is between the price of gas and protection of the flag. However, I am prepared to discuss the proposed amendment, to move it from Capitol Hill into the hands of the people for them to decide. The flag is of a nation, our nation, which makes it our flag and it is everything that the United States symbolizes. I would like to think this is the very thought that drives the millions of people who want to see the American flag protected. It certainly is for me. |