Hatch, Hon. Orrin G.-Continued Prepared statements of-Continued Ted N. Mallow, co-chairman, Citizens Flag Alliance State of Wiscon- Page 137 Leo McKernan, chairman, the Citizens Flag Alliance, State of New 138 Ralph J. Reel, chairman, Citizens Flag Alliance for the State of 139 David M. Robinson 140 Hon. Harrison Schmitt, formerly Senator from New Mexico 141 142 Joseph E. Gadbois, vice president, fraternal services, Catholic Family 143 Testimony Prepared statement Prepared statement of Solange E. Bitol, American Civil Liberties Union Stephenson, Sean C.: Testimony Thurmond, Hon. Strom submitted the following prepared statements: Keith A. Kreul, The American Legion (1983) Robert D. Evans on behalf of the American Bar Association Wetzel, Gary G.: Testimony Prepared statement 101 104 APPENDIX PROPOSED LEGISLATION S.J. Res. 40, a bill proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States QUESTIONS AND ANSWERS Response of John Schneider to a question from Senator Hatch Thurmond 145 147 148 149 Leahy ADDITIONAL SUBMISSIONS FOR THE RECORD Prepared statements of: Laymon Edward Jones 151 CMSgt. (Ret.) James D. Staton, executive director, Air Force Sergeants 151 PROPOSING AN AMENDMENT TO THE CONSTITUTION AUTHORIZING CONGRESS TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG WEDNESDAY, JULY 8, 1998 U.S. SENATE, COMMITTEE ON THE JUDICIARY, The committee met, pursuant to notice, at 9 a.m., in room SD226, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the committee) presiding. Also present: Senators Thurmond, Grassley, Sessions, Feingold, and Durbin. STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH The CHAIRMAN. We are happy to start this morning. This is another hearing on S.J. Res. 40, the joint resolution proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States. We are very honored to have a number of really fine witnesses with us here today. As many of you know, Senator Cleland and I have sponsored S.J. Res. 40 on February 4, 1998, and the committee voted it out on June 24 of this year. I am pleased to say that this amendment has strong bipartisan support. In addition to Senator Cleland and myself, some 59 Senators have agreed to cosponsor this constitutional amendment. I would also like to note that H.J. Res. 54, the House version of our measure, passed on June 12, 1997, by a vote of 310 to 114, again with overwhelming bipartisan support. Indeed, nearly half of the House Democrats voted for the measure. Protecting the flag is thus not a partisan gesture, nor should it be. I think that this effort is an important means of reaffirming our allegiance to the flag as a symbol of our national unity. It is not, as some would argue, a means of restricting first amendment rights. Our proposed amendment reads simply, "The Congress shall have the power to prohibit the physical desecration of the flag of the United States." That is pretty simple and it is pretty clear. Thus, to clear up one of the many misconceptions surrounding this measure, this is not an amendment to ban flag desecration, but an amendment to allow Congress to make that decision. This amendment is not self-executing, so a statute defining (1) the terms and penalties for the proscribed conduct will need to be enacted. Now, many have argued that a constitutional amendment giving Congress this authority is unnecessary. While it might be nice if a statute were all that was needed to permit Congress to prohibit the desecration of our flag, a constitutional amendment is necessary because the Supreme Court has given us no choice in the matter. In two narrow 5-4 decisions, Texas v. Johnson and United States v. Eichman, the Supreme Court departed from over 200 years of precedent and overturned State and Federal statutes prohibiting flag desecration. If I recall correctly, 49 States have called for this resolution to be passed. They want this sent to them so they can make up their own minds as to whether or not they will ratify this constitutional amendment. Now, I might add since the Johnson and Eichman decisions, several challenges have been brought against State statutes prohibiting flag desecration. State courts considering these types of statutes have uniformly held these statutes unconstitutional on their face or as applied as a result of the Supreme Court's ruling. The most recent of these cases is Wisconsin v. Janssen which was decided on June 25, 1998. This case involved a defendant, Janssen, who confessed to, among other things, defecating on the U.S. flag. Relying on the Supreme Court's Johnson decision, the Wisconsin high court invalidated a State statute prohibiting flag desecration on the ground that the statute was overbroad and unconstitutional on its face. In reaching that decision, the court noted that it was deeply offended by Janssen's conduct, and stated that, "[t]o many, particularly those who have fought for our country, it is a slap in the face." The court further explained that: [T]hough our disquieted emotions will eventually subside, the facts of this case will remain a glowing ember of frustration in our hearts and minds. That an individual or individuals might conceivably repeat such conduct in the future is a fact which we acknowledge only with deep regret. What was so distressing about this decision is that the court found the statute constitutionally invalid even as the State sought to punish an individual whose vile and senseless act was devoid of any significant political message. As the court noted, however: The clear intent of the legislature is to proscribe all speech or conduct which is grossly offensive and contemptuous of the United States flag. Therefore, any version of the current statute would violate fundamental principles of First Amendment law both in explicit wording and intent. Under prevailing Supreme Court precedent, then, the court found that the proscribed conduct was protected speech. The Wisconsin decision, like those before it, demonstrates that any statute, State or Federal, that seeks to prohibit flag desecration will be struck down. The Wisconsin Supreme Court, however, did note that all was not lost. The court opined that, and I will quote them again, "[i]f it is the will of the people in the country to amend the United States Constitution in order to protect our nation's symbol, it must be done through normal political channels," and noted that the Wisconsin legislature recently adopted a resolution urging Congress to amend the Constitution to prohibit flag desecration. The ball thus is further in our court here in Congress. If we are serious about protecting the American flag, it is up to this body at this time to take action on this proposed amendment and send it to the States. The American people revere the flag of the United States as the unique symbol of our Nation and the freedom we enjoy as Americans. As Supreme Court Justice John Paul Stevens said in his dissent in Johnson: [A] country's flag is a symbol of more than "nationhood and national unity." It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas *** So it is with the American flag. It is more than a proud symbol of the courage, the determination, and the gifts of a nation that transformed 13 fledgling colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations. Now, the American flag represents in a way nothing else can the common bond shared by the people of this Nation. This is one of the most diverse nations in the world, and this is one of the things we all have a common bond in. Whatever our differences of party, politics, philosophy, race, religion, ethnic background, economic status, social status or geographic region, we are all united as Americans and that unity is symbolized by a unique flag, and that is the American flag. As the visible embodiment of our Nation and its principles and values and ideals, the American flag has come to symbolize hope, opportunity, justice and freedom, and not just to the people of this Nation, but to people all over the world. I will put the rest of my statement in the record because I want to hear the witnesses, and I will turn to Senator Feingold at this time. [The prepared statement of Senator Hatch follows:] PREPARED STATEMENT OF HON. ORRIN G. HATCH Good morning. We have gathered today to hear testimony concerning Senate Joint Resolution 40-the Flag Protection Act. As many of you know, Senator Cleland and I introduced S.J. Res. 40 on February 4, 1998, and the Committee voted it out on June 24, 1998. I am pleased to say that this amendment has strong bipartisan support. In addition to Senator Cleland and I, some 59 Senators have agreed to co-sponsor this resolution. I would also like to note that H.J. Resolution 54-the House version of our measure-passed on June 12, 1997, by a vote of 310 to 114, again with overwhelming bipartisan support. Indeed, nearly half of the House Democrats voted for the measure. Protecting the flag is thus not a partisan gesture, nor should it be. I think that this effort is an important means of reaffirming our allegiance to the flag as a symbol of our national unity. It is not, as some would argue, a means of restricting First Amendment rights. Our proposed amendment reads simply: "The Congress shall have the power to prohibit the physical desecration of the flag of the United States. Thus, to clear up one of the many misconceptions surrounding this measure, this is not an amendment to ban flag desecration, but an amendment to allow Congress to make that decision. This amendment is not self-executing, so a statute defining the terms and penalties for the proscribed conduct will need to be enacted. Many have argued that a constitutional amendment giving Congress this authority is unnecessary. While it might be nice if a statute were all that was needed to permit Congress to prohibit flag desecration, a constitutional amendment is necessary because the Supreme Court has given us no choice in the matter. In two narrow 5-4 decisions-Texas v. Johnson and United States v. Eichman-the Supreme Court departed from over 200 years of precedent and overturned state and federal statutes prohibiting flag desecration. Since the Johnson and Eichman decisions, several challenges have been brought against state statutes prohibiting flag desecration. State courts considering these types of statutes have uniformly held these statutes unconstitutional on their face, or as applied as a result of the Supreme Court's rulings. The most recent of these cases is Wisconsin v. Janssen, which was decided on June 25, 1998. This case involved a defendant, Janssen, who confessed to, among other things, defecating on the United States flag. Relying on the Supreme Court's Johnson decision, the Wisconsin high court invalidated a state statute prohibiting flag desecration, on the ground that the statute was overbroad and unconstitutional on its face. In reaching that decision, the court noted that it was deeply offended by Janssen's conduct, and stated that "[t]o many, particularly those who have fought for our country, it is a slap in the face." The court further explained that “[t]hough our disquieted emotions will eventually subside, the facts of this case will remain a glowing ember of frustration in our hearts and minds. That an individual or individuals might conceivably repeat such conduct in the future is a fact which we acknowledge only with deep regret." What was so distressing about this decision is that the court found the statute constitutionally invalid even as the state sought to punish an individual whose vile and senseless act was devoid of any significant political message. As the court noted, however, "the clear intent of the legislature is to proscribe all speech or conduct which is grossly offensive and contemptuous of the United States flag. Therefore, any version of the current statute would violate fundamental privileges of First Amendment law both in explicit wording and intent." Under prevailing Supreme Court precedent, then, the court found that the proscribed conducted was protected speech. The Wisconsin decision, like those before it, demonstrates that any statute, state or federal, that seeks to prohibit flag desecration will be struck down. The Wisconsin Supreme Court, however, did note that all was not lost. The court opined that "[i]f it is the will of the people in the country to amend the United States Constitution in order to protect our nation's symbol, it must be done through normal political channels," and noted that the Wisconsin legislature recently adopted a resolution urging Congress to amend the Constitution to prohibit flag desecration. The ball is thus firmly in our court here in Congress. If we are serious about protecting the American flag, it is up to this body, at this time, to take action to send this proposed amendment to the states. The American people revere the flag of the United States as the unique symbol of our Nation and the freedom we enjoy as Americans. As Supreme Court Justice John Paul Stevens said in his dissent in Johnson, “[A] country's flag is a symbol of more than 'nationhood and national unity.' It also signifies the ideas that characterize the society that has chosen that emblem as well as the special history that has animated the growth and power of those ideas. * **So it is with the American flag. It is more than a proud symbol of the courage, the determination, and the gifts of a nation that transformed 13 fledgling colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other people who share our aspirations." (491 U.S. at 437 (dissenting)). The American flag represents, in a way nothing else can, the common bond shared by the people of this nation, one of the most diverse in the world. Whatever our differences of party, politics, philosophy, race, religion, ethnic background, economic status, social status, or geographic region, we are united as Americans. That unity is symbolized by a unique emblem, the American flag. As the visible embodiment of our nation and its principles, values, and ideals, the American flag has come to symbolize hope, opportunity, justice, and freedom, not just to the people of this nation, but to people all over the world. I understand some of my colleagues oppose the flag amendment. Some have argued that this Amendment actually violates strongly held American principles. They contend that preventing the physical desecration of the flag actually tramples on the sacred right of Americans to speak freely. Indeed, persons on both sides of this issue have served in the military or lost family members in service to our country, or both. I respect those who have a different view, but I disagree. Restoring legal protection to the American flag will not infringe on free speech. If burning the flag were the only means of expressing dissatisfaction with the nation's policies, then I, too, might oppose this amendment. But we live in a free and open society. Those who wish to express their political opinions may do so in the media, in newspaper editorials, in peaceful demonstrations, and through their power to vote. Certainly, destroying federal property may be a way of expressing one's dissatisfaction with our nation's policy objectives. But such action in my opinion is expressive conduct not actual speech, and laws can be enacted preventing such actions-in large part because there are peaceful alternatives that can be equally pow |