Constitutional Amendment Authorizing Congress to Prohibit Physical Desecration of the Flag of the United States

CONSTITUTIONAL AMENDMENT AUTHORIZING CONGRESS TO PROHIBIT PHYSICAL DESECRATION OF THE FLAG OF THE UNITED STATES -- (House of Representatives - June 22, 2005)

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Mr. GOODLATTE. Mr. Speaker, I thank the gentleman for yielding me this time.

I rise in strong opposition to the Watt substitute and in support of H.J. Res. 10, which would amend the Constitution to give Congress the authority to prevent the physical desecration of the American flag. The gentleman from North Carolina (Mr. Watt) says that the Bill of Rights has never been amended. It may be that the words have never been changed, but the United States Supreme Court on many, many, many occasions has amended the first amendment and other provisions in the Bill of Rights by changing the meaning of those words. This is one of those such occasions.

For 200 years, many Supreme Court Justices opined that flag desecration laws which were in effect in 49 States were not in violation of the first amendment of the Constitution. This is in defiance of the will of the overwhelming majority of the American people, the will of the overwhelming majority of the State legislatures, and as we will see later today, the will of the overwhelming majority of the United States Congress.

Clearly, free speech goes beyond the written or spoken word to include other forms of expression, including the wearing of symbols and other actions. However, not all actions constitute free speech, and I am hardly alone in asserting that flag desecration is not speech to be protected under the first amendment. In 1989, the United States Supreme Court in Texas v. Johnson unilaterally invalidated flag protection laws in 48 States and the District of Columbia, overturning 100 years of Federal and State precedent, banning the physical desecration of the American flag. When that occurs, and when the people and the Congress believe that is wrong, it is a constitutional amendment that corrects the error of the Supreme Court.

Following this decision for the first time in our Nation's history, an overwhelming 49 State legislatures petitioned Congress to send a flag desecration amendment to the States for ratification. The physical desecration of the American flag constitutes an assault on the most deeply shared experiences of the American people. Our flag is more than a piece of cloth; it a symbol of our freedom. It represents the sacrifices of those who gave their lives to win and preserve freedom.

There have been those who have gone unarmed into battle carrying the flag, and many have died to keep the flag from falling into the hands of our enemies. To burn a flag in front of a veteran or someone else who has put his or her life on the line for their country is an act not deserving protection.

Our Nation is unique in the world because our citizens represent a variety of heritages, religions, ethnicities, and political viewpoints. Indeed, we debate our differences openly and vigorously; yet we can always look to the flag and remember that we share certain core values that bind us together as a people.

For over 200 years, our flag has flown proudly over our Nation, a visible promise of our commitment to the preservation and expansion of democracy. However, symbols, like values, are eroded gradually. Each time they are desecrated, their symbolism is diminished. We must act now to protect one of our Nation's most sacred symbols because the Supreme Court has struck down Congress' effort to protect the flag by statute. It is now necessary to amend the Constitution to give Congress the authority to protect the flag.

Supreme Court Justices as varied as William Rehnquist, Warren Burger, and Hugo Black have all recognized the appropriateness of these desecration statutes that were struck down by the Court.

I urge my colleagues to support H.J. Res. 10.

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Of course, words or other forms of expression do not have to be correct in order to be protected. And clearly, free speech goes beyond the written or spoken word to include other forms of expression, including the wearing of symbols and other actions. Not all actions constitute free speech, and I am hardly alone in asserting that flag desecration isn't free speech to be protected under the First Amendment.

"I believe that the states and federal government do have the power to protect the flag from acts of desecration and disgrace," wrote former Chief Justice Earl Warren. This view is shared by many past and present justices of the U.S. Supreme Court across the ideological spectrum, including Hugo Black, Abe Fortas, Byron White, John Paul Stevens, Sandra Day O'Connor and current Chief Justice William Rehnquist. These eminent men and women haven't taken a merely political stance based upon "shallow assumptions" or "perilously sloppy thinking." Rather, they rely upon well-established principles.

"Surely one of the high purposes of a democratic society," wrote Rehnquist, "is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people whether it be murder, embezzlement, pollution or flag burning." Free speech isn't the right to do anything you want to do anytime you want to do it. Rather, it's a precious liberty founded in law-a freedom preserved by respect for the rights of others.

To say that society isn't entitled to establish rules of behavior governing its members is either to abandon any meaningful definition of civilization or to believe that civilization can survive without regard to the feelings or decent treatment of others. To burn a flag in front of a veteran or someone else who has put his or her life on the line for their country is a despicable act not deserving protection.

It's well-established that certain types of speech may be prevented under some circumstances, including lewd, obscene, profane, libelous, insulting or fighting words. When it comes to actions, the proscriptions may be even broader. That's where I have voted to put flag desecration-back where 48 state legislatures thought it was when they passed laws prohibiting it.

This amendment doesn't, in any way, alter the First Amendment. It simply corrects a misguided court interpretation of that amendment. As Justice Rehnquist eloquently observed in concluding his dissent: "Uncritical extension of constitutional protection to the burning of the flag risks the frustration of the very purpose for which organized governments are instituted ..... The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight." I am proud to play a part in trying to right that wrong.

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