erful. We do not permit those who opposed the President's recent trip to China to break down the doors of the State Department to register their dissatisfaction.

And, right here in the United States Senate, we prohibit speeches or demonstrations of any kind in the public galleries, even the silent display of signs or banners. As a society, we can and do place limitations on both speech and conduct.

Mutilating our Nation's great symbol of national unity is simply not necessary to express an opinion. Those individuals who have a message to the country should not confuse their right to speak with the conduct of desecrating a symbol that embodies the ideals of a Nation that Americans have given their lives to protect.

We live in a time where standards have eroded. Civility and mutual respect are in decline. Values are considered relative. We seek to instill in our children a pride in their country that will serve as a basis for good citizenship and a devotion to improving the country and adhering to its best interests as they can see them. We hope they will feel connected to the diverse people who are their fellow citizens. We ask our school children to pledge allegiance to the flag, but Johnson and Eichman dictate that we must tell them the same flag is unworthy of legal protection when it is treated in the most vile, disrespectful, and contemptuous manner.

As our country grows more and more diverse, many of our people revel in their particular cultures and diverse national origins, and properly so. Others are alienated from their fellow citizens and from government altogether.

We have no monarchy, no state religion, no elite class hereditary or otherwise— officially representing this nation. What we do have is the flag.

The American flag is the one symbol that unites a very diverse people in a way nothing else can, in peace and in war. Despite our differences, the American flag forms a unique, common bond among us. Failure to protect the flag inevitably loosens this bond, no matter how much some may claim to the contrary.

Restoring legal protection to the American flag will not place us on a slippery slope to limit other freedoms. There is no other symbol, no other object, which represents our nation as does the flag. Accordingly, there is no basis for concern that the protection we seek for the American flag could be extended to cover any other object or form of political expression.

Our effort here today to restore legal protection to our national symbol is a movement of the American people. When an identical amendment was defeated in Congress in 1990, in the aftermath of Johnson and Eichman, veterans, patriotic, and other civic organizations, together with individual citizens from all walks of life, initiated a grass-roots movement to regain legal protection of the flag. In short, the American people have revived this constitutional amendment. Forty-nine states have passed resolutions urging Congress to send a flag protection amendment to the states for ratification.

I hope our efforts here today will encourage my colleagues to join me in supporting the adoption of this resolution, and send the flag amendment to the states for their approval.

I would like to thank the witnesses in advance for their testimony and note that I look forward to hearing from them, even if they happen to disagree with this proposal.

Senator FEINGOLD. Thank you very much, Mr. Chairman. Let me first ask consent that Senator Leahy be permitted to submit a statement for the record.

The CHAIRMAN. Without objection, we will put his statement in the record, and all other statements from others as well on the committee.

[The prepared statement of Senator Leahy follows:]

PREPARED STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE STATE OF VERMONT

James Madison, George Washington, John Dickinson, Benjamin Franklin, John Rutledge, Alexander Hamilton and the other representatives to the 1787 convention toiled through a hot summer and created one of the marvels of human history, the Constitution of the United States.

Their handiwork included establishing the Senate of the United States and providing a mechanism for amending the Constitution when two thirds of both Houses of Congress deem it "necessary". I think that the principles of the fundamental charter for our government are entitled to respect. As old-fashioned as it may be, I think that we ought to approach the prospect of proposing amendments to the Constitution with some decorum.

Last month the Senate Judiciary Committee began actively considering two constitutional amendments simultaneously. Just before the Independence Day recess, a majority of the Committee voted to report a constitutional amendment to cut back on the Bill of Rights for the first time in our nation's history in order to authorize Congress to pass laws against political expression that take a form destructive of the U.S. flag, one of our nation's preeminent symbols.

I was disappointed that the debate in Committee on June 24 was virtually all on one side of the room. Senators Feingold, Durbin and Biden were eloquent. Senator Feinstein not only spoke but asked questions and began to explore matters raised by Senator Biden. I was privileged to speak. I think that it is fair to say that we approached the matter with the seriousness that it deserves.

The other side was uncharacteristically silent. The Chairman put his statement into the record and made some moving and highly personal remarks. Senator Thurmond made a brief statement characterizing flag burning as "indefensible speech" and Senator Sessions spoke about the flag in the context of the Civil War and a Union victory.

The Committee voted to amend the Constitution with far less debate than we gave to proposals for bankruptcy reform or for that matter, to the reporting of the nomination of Margaret Morrow to the District Court.

Now, two weeks after the Committee has already met and expeditiously dispatched the proposed constitutional amendment to the Senate, this Committee is holding a hearing into the proposal.

When the Senate passed the ill-conceived Communications Decency Act over my objections in 1996, this Committee got around to holding a hearing on the general topic only after the bill had already passed the Senate. Three times in the course of its decision holding the measure unconstitutional, the Supreme Court took note that it passed without the benefit of hearings, findings or considered deliberation. As the Supreme Court noted in its decision, I cautioned against such action at the time. Not surprisingly, the end result was passage of an unconstitutional law.

Last year the Committee voted to report S. 10, a juvenile crime bill, in July and filed its report in October, 1997. This year, in March 1998, the Subcommittee on Youth Violence got around to holding a hearing on the record keeping mandates inIcluded in the Committee version of that bill.

On such occasions, the Committee has put the legislative cart before the horse. Hearings can be an important part of the legislative process.

I cannot remember another time, however, that this Committee has adopted this "Alice in Wonderland" approach to constitutional amendments. I am saddened that we have come to this, that we are making a mockery of Committee consideration of constitutional amendments and a farce out of the constitutional amendment proc

ess.

Proposals to amend the Constitution should not be used merely as election year fodder or media events. Those who feel strongly on both sides of this proposal to amend the Constitution and restrict the Bill of Rights with regard to the American flag deserve better. This topsy turvy approach to constitutional deliberation is not the way to show respect to the work of those who toiled over 200 years ago to bring forth this nation. This is no way to honor the blood, toil and sacrifice of those who have helped build this country and preserve our democratic institutions. What should be our most thoughtful deliberative process is being shown to be something else.

The witnesses who have come here today deserve better. Among those who are testifying today are those who have served our country and protected our freedoms with great bravery and honor. They deserve better then to be asked on short notice to come to the seat of their government in order to pass "through the glass darkly" into this backwards process. In particular, I thank retired Master Sergeant Marvin Stenhammar, a paratrooper and green beret who went into harm's way in Panama and in Operation Desert Storm. He has seen countries first-hand where freedom of speech is not protected as it is here. I welcome all of the witnesses and only wish that this process better deserved the honor they do it by their presence.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN

Senator FEINGOLD. Thank you, Mr. Chairman. I would like to begin by commending you, Senator Hatch, for your dedication and hard work for the proposed flag desecration constitutional amendment. I know that for all of us, the issue is of the utmost impor

tance due to our shared strong reverence for the American flag. And I believe the people that are supporting this amendment are sincere, but I would hope that no one could accuse me of opposing this constitutional amendment for political reasons. Indeed, it has to be one of the most politically unpopular positions I could take. I oppose this amendment, though-and I want to say this to these very fine people that are about to testify-I oppose this amendment for the same reasons that my colleague from Utah supports the amendment and you support the amendment. I simply oppose this amendment because I do love the American flag and because I love what it stands for.

I regard any desecration of the American flag as an abhorrent act of ignorance and disrespect and violence. If such an act is so disgusting to me, I can only imagine how disturbing it has to be to an American veteran who risked his or her life, or to the widow of a veteran who actually gave his or her life for this country. Flag burning must be completely infuriating to these people. It must make their hearts sink and their blood boil.

Despite my enmity toward those who burn the American flag, however, I do stand in opposition to this amendment because I do think it will limit Americans' first amendment right to freedom of speech and expression, the most fundamental of rights guaranteed our citizens by our Constitution and the most fundamental of rights necessary to maintain our constitutional democracy.

Under the first amendment, Americans are promised the right to stand and state their views, regardless of their particular point of view. As noted by the U.S. Supreme Court in Street v. New York, freedom to differ is not limited to things that do not matter much or to those things upon which we agree. That would be a mere shadow of freedom. The test of the first amendment's substance is the right to differ as to things that touch the very heart of the existing order.

And as noted by the Supreme Court in the landmark case Texas v. Johnson, if there is a bedrock principle underlying the first amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. "We have not even recognized an exception to this principle where our flag has been involved," the Supreme Court said.

In fact, America stands today as the leader of the free world because it tolerates varying forms of dissent. Around the world, people are desperately fighting for democracy and American-style liberties, and in particular freedom of expression.

Take, for example, Mr. Chairman, an event that occurred just last month. A Hong Kong court fined two protesters for desecrating the Chinese national flag and Hong Kong's territorial flag in what was the first conviction since the new flag laws took effect after the totalitarian government of China took control of Hong Kong from the democratic government of Great Britain last July.

The defense lawyer in the Hong Kong case expressed that in a free and open society, there should be allowances for different ways of expressing opinions even if it antagonizes some people. The judge, however, in this new totalitarian situation, rejected this argument and stated that flags are important symbols and desecra

tion laws are necessary to maintain public order. In other antiflagdesecration statutes are necessary for a government that seeks to curtail public dissent and control political speech.

Let me tell you some other countries that criminalize the desecration of their flag. Cuba provides for a penalty of imprisonment of up to 1 year. Apartheid South Africa, when it existed, provides for a penalty of imprisonment for up to 5 years. Iran provides for a penalty of imprisonment up to 10 years for desecrating their flag, and Haiti provides a penalty of forced labor for life for such acts. We have to recognize that an amendment to the Constitution criminalizing flag desecration in this way aligns the United States with totalitarian governments like China, Cuba and Iran, countries which protect their country's flag and their oppressive, tyrannical governments at the expense of individual liberties. We must not join such countries which claim to protect their flags in the name of patriotism, but who, in reality, protect their flags out of fear that their citizens will gain free speech rights and stand up in opposition to their oppressive regimes.

I must also note that I am deeply troubled by the trend that has developed in the last couple of Congresses of using proposing constitutional amendments as the first and only solution to society's problems, or perhaps more accurately stated, the use of constitutional amendments sometimes as political tools which make for rhetoric, but which do little to actually help the American public. Over the past two Congresses, we have seen a proliferation of constitutional amendments introduced and voted on. And let me say again I recognize the sincerity of the people who are supporting this amendment. But, overall, the 104th Congress' seven votes cast on six proposed amendments held the record for this measure of congressional activity since 1789. Moreover, there were 149 constitutional amendments in the 104th, and 3 so far in the 105th Congress.

Today, this committee is considering going one step further to amend for the first time the Bill of Rights. An amendment of this sort has the potential to set a precarious precedent, allowing the Government to determine and regulate expression that it deems disrespectful. I know that everyone in this room understands the gravity of such action. I therefore suggest that we put aside any politics and acknowledge that this proposed amendment could do great harm to our first amendment rights, while doing little to actually engender respect for the flag or promote patriotism.

Some Americans believe that acts of flag desecration are not speech and thus would not fall within the ambit of protection afforded by the first amendment. However, the reasons they cite ultimately provide further support for such protection.

Specifically, proponents argue that the flag has become a reminder of American courage, fortitude and sacrifice, and is therefore a special symbol that needs to be protected. I agree that the American flag stirs such strong emotions. However, this country is built on more than symbols. I believe that the integrity of the flag can only be preserved through the promotion of respect rather than through the punishment of disrespect.

As Keith Kreul, a former National Commander of the American Legion, and a constituent of mine from Fennimore, WI, has said

and I welcome my constituent from Wisconsin, Mr. Wetzel-Mr. Kreul said in testimony before this committee this March, "While all good Americans are appalled by flag desecration, we must keep our perspective and not initiate an action that results in a dangerous precedent. A patriot cannot be created by legislation. Patriotism must be nurtured in the family and educational process. Attempts to bestow honor by government decree upon the flag are an idle myth and must not prevail."

So, Mr. Chairman, one can no more destroy the principles for which this American flag stands by burning a flag than one can destroy our constitutional democracy by burning a copy of the Constitution. The flag exists, as it should, in a higher realm of existence than the material. No laws or amendments that we can pass will make anyone love or revere the flag, but we can and ought to protect the principles of freedom and opportunity and democracy and the Bill of Rights by opposing this amendment.

Mr. Chairman, I appreciate the opportunity to speak and let me just ask unanimous consent at this point that the following testimony be entered into the record-the statement of Senator Bob Kerrey; the statement of the National Campaign for Freedom of Expression; the statement of the National Association of Artists' Organizations; the statement of the Emergency Committee to Defend the First Amendment, including such members as Terry Anderson, a former hostage, Lloyd Cutler, White House Counsel, Prof. Michael McConnell, Norman Dorsen, former president of the ACLU, William Ray Smith, Jr., a former president of the American Bar Association; the statement of Feminists for Free Expression; the statement of the American Booksellers Foundation for Free Expression; the statement of Lawrence J. Korb, Senior Fellow at the Brookings Institution; and the statement of Robert S. Peck, a professor of constitutional law.

The CHAIRMAN. Without objection, we will put those in the record.

[The statements referred to follow:]

STATEMENT OF HON. J. ROBERT KERREY, A U.S. SENATOR FROM THE STATE OF

NEBRASKA

Mr. Chairman, I appreciate the opportunity to present my views on S.J. Res. 40, a joint_resolution to amend the U.S. Constitution to protect the physical integrity of the flag.

I have had the opportunity to testify before this Committee on this issue many times. Each time, I have expressed an understanding for the motives of those who endorse such an amendment, and each time, I have respectfully disagreed.

There is no disagreement about those who desecrate our flag. The persons who do so are publicity-seeking miscreants, and their actions rightly are condemned by the vast majority of Americans. It is in the response to such actions where I differ from the sponsors of the Resolution: I do not believe that amending our Constitution is the appropriate or necessary reaction.

I will let my previous testimony and other statements I have made speak for themselves and limit my remarks today. Instead, I ask that an op-ed that ran just a few days ago in the Lincoln Journal Star, a Nebraska newspaper, be submitted in the record.

I hope that as the Committee studies this legislation, members will consider, and come to agree with my view.

Thank you.