FLAG DESECRATION AMENDMENT--Continued -- (Senate - June 27, 2006)
BREAK IN TRANSCRIPT
Mr. HATCH. Mr. President, what does the Bill of Rights have to do with this? That argument is not a valid argument. Look at what the amendment says:
The Congress shall have power to prohibit the physical desecration of the flag of the United States.
There is no interference with the Bill of Rights. Yet the Senator--the Senators--who want to so-called protect the Bill of Rights have come up with a statute that does exactly the opposite, according to their way of looking at it.
Frankly, there are only five Justices who said that defecating on the flag, urinating on the flag, burning it with contempt, and stomping on it is not a violation of the first amendment.
But this amendment does not have anything to do with that. All this amendment says is that we are going to give the power back to the people and to the people's representatives in Congress, and they will make the determination as to how we protect the flag, if they decide to. In other words, we are going to restore the Constitution to what it was before these unelected five Justices on the Supreme Court changed it. And four others disagreed with them.
By the way, the distinguished Senator from Massachusetts said this is election-year politics. I wonder how he explains the 6 years in a row that the House of Representatives, in bipartisan votes, has passed this amendment by the requisite two-thirds vote? I wonder how he is going to explain that 48 States had antiflag desecration statutes before the Supreme Court wiped all of that out and all of the people's work and all of the people's will out. What is he going to say about the 50 States, including his, that have petitioned us for this amendment? Fifty State legislatures have asked for this amendment.
There are 60 cosponsors in the Senate. There are at least six others who have always voted to protect the flag. I question whether all six of those will vote for this. But the fact is, they should because they have always voted for it. So there are at least 66 people who should be voting for it.
There is no narrowing of the Bill of Rights by this amendment. That argument would have to take place after this amendment passes by the two-thirds vote, if it could, and then is ratified by 38 States. Then there would be a debate where they could raise all the issues they want about the first amendment, faulty though they are.
The fact is that I was asked this afternoon by a large body of media: Is this the most important thing the Senate could be doing at this time? I can tell you, you're darn right it is. The fact is, we had five unelected Justices who overturned 100 years of Supreme Court precedent, backing up 48 States that have had antiflag desecration amendments. We have had 50 States ask for a change here so we can go back to protecting our flag.
What we would be doing is sending a message to the Court: You cannot usurp the power of the Congress of the United States. That is what is involved. I hear time after time complaints about the courts usurping the powers of the Congress and other branches usurping the powers of the Congress. Here is a chance to bring that power back to the Congress where it belongs and then have that debate. It would still take 60 votes because of the opposition of some. It would still take 60 votes to pass a statute if we could pass this amendment.
The fact is, if you want to respect the Constitution, let's restore it to what the Constitution was before five unelected jurists changed that Constitution. The fact is, this amendment is one of the most important things we can do to send a message to the U.S. Supreme Court that: You cannot usurp the power of the legislative branch of this Government.
It does nothing about the Bill of Rights. That would have to be argued later if we pass this amendment and have it ratified. Then we could argue about the Bill of Rights later. And I will bet you money, the only reason Senators are claiming the Bill of Rights is to try to justify their vote. But now, if they believe the Bill of Rights is being interfered with, then why would they come up with a statute to do the very same thing they are saying this amendment does? Why have they always come up with a statute that basically, if you use their logic, invades the first amendment to the Constitution? Why would they do that? There is only one reason. It is a political reason to cover their backsides.
Mr. President, I thank the Senate.
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