Flag Desecration Amendment

FLAG DESECRATION AMENDMENT -- (Senate - June 27, 2006)

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Mr. CORNYN. Mr. President, I rise to address the resolution that is before us today and to speak in favor of its adoption. But before I do that, I think it is important first to read what the resolution says, because I think what we are actually going to be voting on has been misconstrued and, to some extent, inadvertently misrepresented. Also, during the course of my comments, I would like to address those who say that protecting Congress's prerogative to pass laws against flag desecration and those who say it is not important and emphatically disagree with them. And to those who say there are other things we can and should be doing, I say, well, we have been very busy doing a lot of very important things, but I certainly believe we have enough time in our crowded schedule to address this important issue as well.

There are also those who say amending the Constitution is simply something we should not do, even though we have done so 27 times during the course of our Nation's history, and even though the 27th amendment to the United States Constitution provides that Congress can't increase its salary without having an intervening election. If we can amend the Constitution for that, which I agree is an important provision, we can certainly reinstate Congress's authority to pass laws protecting our national emblems and our national symbols such as the United States flag.

There are also those who try to get off--and again, I know people of good faith have serious disagreements. I don't mean to disparage the good faith of those who say this, but I would challenge those who say we can pass a statute and avoid having to pass a constitutional amendment. All I would say to that is: Been there. Done that. Doesn't work. The Supreme Court held that subsequent statutory provision unconstitutional, just like it did in the Texas case in 1989, the Texas law that prohibited desecration of the flag.

First of all, let me read the constitutional amendment being proposed, because there are some who say we are being asked to ban flag burning. In fact, this is a restoration of the authority under the Constitution to Congress to pass such laws as it deems appropriate, and we can talk about what the details of those bills would be later on, once the amendment is adopted. But it says, simply:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States.

The article says simply this:

The Congress shall have the power to prohibit the physical desecration of the flag of the United States.

As I said, this constitutional amendment doesn't actually make it a criminal act to desecrate the flag; it doesn't say what the penalties will be. What this constitutional amendment does is reinstate Congress's historical authority to protect the flag against desecration and leave for a later date what exactly that statute, that bill, would look like.

The reason I feel so strongly about this provision is because of the unique nature of our national symbol. The American flag is a monument, a symbol of our freedom, our country, and our way of life. Why in the world would we refuse to protect it against desecration?

As a former President of the United States has noted:

We identify the flag with almost everything we hold dear on Earth. It represents our peace and security, our civil and political liberty, our freedom of religious worship, our family, our friends, our home. We see it in the great multitude of blessings of rights and privileges that make up our country.

Another President has said it this way:

Our flag is a proud flag and it stands for liberty and civilization. Where it has once floated, there must be no return to tyranny.

We not only pledge allegiance to the flag each day in the Chamber of the U.S. Senate; children across America recite those words at the beginning of each school day, too. We celebrate Flag Day on June 14 of each year. We pin to our lapels flag pins and paste it to the windows of our cars and trucks. Following 9/11, you could hardly buy a flag, because they were in such demand as a rallying symbol of American patriotism and resolve in the wake of that awful attack, as depicted by this well-remembered picture of first responders in New York erecting the American flag out of the rubble following the deaths of 3,000 innocent Americans.

We insist on special rules of etiquette when a flag is handled. When I was a Boy Scout growing up, that was one of the things you learned. You learned flag etiquette, how to demonstrate respect for this unique symbol of our country, including learning how, when the flag is old and tattered, that special rules of etiquette dictate its disposal.

By displaying the flag, we demonstrate our gratitude to the generations passed who have fought and died for our country. And we remind ourselves of the obligation that we have to preserve our freedom for the generations yet to come and to pass along to our children and grandchildren the blessings of liberty that we have come to enjoy because of the sacrifices of those who have gone before. We drape this emblem over the coffins of those who have died in service to our country, those who have given the last full measure of devotion to keep us and our freedom safe. We proudly fly the flag over our Capitol here in Washington, DC, and at State capitols and public buildings all over our country.

Mr. President, recently I read a book about the most famous picture in the history of photography. This is a picture we are going to put up on this board that all of you will instantly recognize. This

is a picture of Marines erecting the American flag on Iwo Jima in World War II, where thousands upon thousands of Marines gave their lives to take this island from the occupiers. The book I read recently is called ``Flags of Our Fathers,'' written by a man named James Bradley; his father was John. John Bradley, the father of the author, stands in the middle of the most reproduced figure in the history of photography. Only days before this photo was taken, John Bradley, a Navy corpsman, had braved enemy mortar and machine gun fire to administer first aid to a wounded Marine and then dragged him to safety. For this act of heroism John Bradley would receive the Navy Cross, an award second only to the Congressional Medal of Honor.

One of the amazing things about this book, ``Flags of Our Fathers,'' about this photograph and about John Bradley's service to his country as a Marine Corpsman and the service of others of these Marines who erected this flag on Iwo Jima in World War II, is that John Bradley, like so many of the Greatest Generation, never spoke of this historic moment or really much of his military service to his family or friends.

This reminds me a lot of my dad, who was a B-17 pilot in World War II who, on his 13th mission helping to knock out part of Hitler's war machine in Nazi Germany, was shot down and spent 4 months in a German prison camp. And like John Bradley, my dad never talked much about his military service. But James Bradley, John Bradley's son, discovered three boxes of artifacts his father had saved about Iwo Jima after his death, which launched him into a quest to find out a little bit more about his father's past and the past of the five other flag-raisers depicted in this picture.

This book explores the lives of all of these flag-raisers, showing how in times of national crisis ordinary Americans have found within themselves an uncommon courage and a capacity to attempt, and achieve, the impossible.

Indeed, that is one of the things that makes the American flag unique. What becomes of a country that has no special symbols; that somehow, over the passage of time, has deemed itself too sophisticated, too intelligent, too cynical to be choked by emotion when our flag is raised or when the pledge is spoken or when our National Anthem is sung?

During the Civil War, as James McPherson, a internationally known historian of that period has noted:

The most meaningful symbol of regimental pride were the colors--the regimental and national flags, which bonded the men's loyalties to unit, State, and Nation.

He records one combatant as saying:

When the American flag appeared above the battle smoke on the enemy works, it is impossible to describe the feelings one experiences at such a moment. God, country, love, home, pride, conscious strength and power, all crowd your swelling breast. Proud, proud as a man can feel over this victory to our arms. If it were a man's privilege to die when he wished, he would die at that moment.

These are not my words; these are the words of those who, in the service of their country, gained inspiration and purpose from this symbol that is a unique symbol, unlike any other we have in this country.

But ultimately, there are those on the floor of the U.S. Senate who ask: Well, is this really important enough to amend the United States Constitution? To those I would say, the question is not whether the Constitution should be amended; it already has been by judicial decree. The question then remains, who gets the final word? Five Justices on the United States Supreme Court or we, the people?

Not important? I disagree. This, I believe, is the ultimate test of our form of government, based as it is upon consent of the government. Our Founding Fathers recognized that our Constitution might need to be amended over time and thus article V of the Constitution creates a difficult but nevertheless a way forward to amend the Constitution when the American people see fit.

Of course, this process will not stop upon this body's passage of this amendment. Assuming we are able to get the two-thirds vote requirement in the Senate and in the House, then it will go to the States, where three-quarters of the States must ratify the amendment for it to become the 28th amendment to the United States Constitution.

I believe, to quote the Declaration of Independence, that the powers of the Federal Government emanate from ``the consent of the governed.'' In other words, I believe that we as a nation do not have to accept as final the judgment of five Judges who, in 1989, in the Texas v. Johnson case, held the Texas flag desecration law unconstitutional.

The amazing thing about this debate is I do not think there are very many people who recognize that before 1989, when the U.S. Supreme Court struck down the Texas flag desecration statute, 48 States, including the District of Columbia, had laws criminalizing flag desecration--48 States. But, lo and behold, 200 years after its adoption, five Judges decided that the first amendment of the Constitution of the United States, which guarantees free speech, renders all of those 48 flag desecration statutes unconstitutional as being a limitation on free speech. Don't mind the fact that it is really not about speech, it is about behavior. It is not about what you say, it is about what you do. But the Supreme Court, five members of the Court, didn't seem to have too much trouble with that.

Chief Justice Rehnquist, recently departed, in the dissent to that case of Texas v. Johnson in 1989 that struck down all 48 flag desecration statutes, wrote:

The American flag, then, throughout more than 200 years of history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another ``idea'' or ``point of view'' competing for recognition in the marketplace of ideas. Millions and millions of Americans [Chief Justice Rehnquist said] regard it with an almost mystical reverence, regardless of what sort of social, political or philosophical beliefs they may have. I cannot agree that the first amendment invalidates the act of Congress and the laws of 48 of the 50 States which make criminal the public burning of the flag.

Justice Stevens, not necessarily of the same sort of judicial ideology or bent as Chief Justice Rehnquist, also dissented, and he said:

The flag is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for the other peoples who share our aspirations. ..... The value of the flag as a symbol cannot be measured.

Justice Stevens concluded:

The case has nothing to do with ``disagreeable ideas.'' It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset .....

And that Johnson, the defendant in that case, was punished only for the means by which he expressed his opinion, not the opinion itself.

I mentioned a moment ago that there are those of our colleagues who in good faith think that we can fix this problem by simply passing another flag desecration statute in the U.S. Congress. I would point out to my colleagues that we have already tried to do that right after the Texas v. Johnson case. The U.S. Congress overwhelmingly passed a statute which was struck down by the same five Justices on the U.S. Supreme Court in a case called United States v. Eichman.

It is clear that no statute can pass constitutional muster as long as the Texas v. Johnson decision is on the books. There are some who would offer an amendment--maybe during the course of this debate--who in good faith think that if they limit the reach of the statute to fighting words, in other words some act that would provoke violence in a public place, that somehow they have fixed the problem. But we are not just talking about provoking people by what is tantamount to fighting words by protecting the flag. We are talking about protecting a valuable national symbol of all of the things our country has come to mean, both to us and to those abroad; and that the good faith of our colleagues notwithstanding, no statute that we might pass could possibly fix the problem of five Judges assuming after 200 years that flag desecration is protected speech, that it violates the first amendment of the Constitution.

We all know as a matter of constitutional law that no statute can fix a constitutional violation. So only a constitutional amendment, passed by Congress and ratified by three-quarters of the States, could possibly fix this problem.

Those who complain and say this is an imaginary problem, that we do not have acts of flag desecration today or why are we talking about this in 2006 if the Supreme Court held this flag desecration statute unconstitutional in 1989, there is a very simple reason we are still talking about it today. It is because we have been working on it under the leadership of Senator ORRIN HATCH and others for 11 years.

I think the first constitutional amendment that was introduced was in 1995, and we have gradually been making progress each year by getting more and more support in the Senate. I hope our colleagues today will meet the challenge and deliver the 67 votes needed in this Chamber in order to move this constitutional amendment along.

To those who say this is an imaginary problem, I will say simply look at the facts. The Citizens Flag Alliance has a Web site in which they demonstrate 17 acts of flag desecration in the United States over the last 2 years. It may be these are not widely reported in the press. I am not sure exactly what the reason is. But there are 17 acts of flag desecration just in the last 2 years. This is not a contrived or imaginary issue.

I remember the ranking member of the Judiciary Committee, the Senator from Vermont, saying he was vehemently against the constitutional amendment because he didn't think we ought to tamper with the Constitution--notwithstanding the Founding Fathers provided article V to give us a means to amend the Constitution when a sufficient number of people in the Congress and across the country see fit. But I think he said something like: If anyone had the temerity to desecrate the flag in his presence, they wouldn't need a statute criminalizing that act. They would have to get past him to get to wherever it was they were going, suggesting that perhaps individuals who were sufficiently motivated might, through acts of violence, perhaps, dictate justice.

I do not think that is a sufficient answer. This is a real issue. It is not contrived, as demonstrated by the 17 acts of desecration in the last 2 years. It is not a problem we can fix by passing a statute and patting ourselves on the back and saying: Yes, we fixed that problem. This is a problem that calls for a constitutional amendment.

Yes, I know how serious that is. I don't lightly suggest amendments to the Constitution. But I sincerely believe in my heart of hearts this unique symbol of our country and all of our aspirations and dreams--not only for people here but the kinds of aspirations and dreams that are a beacon to those who will come here in the future, and the generations that come here after--I believe it deserves special protection. Thus, I believe we ought to take this opportunity to say yes.

Congress does have a voice in this. Yes, the American people do have a voice in whether the flag is protected. The only way we can do that is by passing this resolution by two-thirds of the Senate and moving this process along and then leaving it up to the people of America, the three-quarters of the States that will have to ratify this before it becomes final. Let them have a word.

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