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20–540 PDF 2005

S. HRG. 108–812

LETTING THE PEOPLE DECIDE: THE CONSTITUTIONAL AMENDMENT AUTHORIZING CONGRESS

TO PROHIBIT THE PHYSICAL DESECRATION

OF THE FLAG OF THE UNITED STATES

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

MARCH 10, 2004

Serial No. J–108–60

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ORRIN G. HATCH, Utah, Chairman 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

LARRY E. CRAIG, Idaho 

SAXBY CHAMBLISS, Georgia 

JOHN CORNYN, Texas 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

JOHN EDWARDS, North Carolina 

BRUCE ARTIM, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Craig, Hon. Larry E., a U.S. Senator from the State of Idaho ............................ 8

prepared statement .......................................................................................... 124

Cornyn, Hon. John, a U.S. Senator from the State of Texas, prepared statement ...................................................................................................................... 122

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 11

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 9

prepared statement .......................................................................................... 138

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 13

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 1

prepared statement .......................................................................................... 153

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 4

prepared statement .......................................................................................... 173

Kohl, Hon. Kohl, a U.S. Senator from the State of Wisconsin, prepared statement ...................................................................................................................... 160

WITNESSES 

Andretti, John, NASCAR Nextel Cup Series Driver, Mooresville, North Carolina ........................................................................................................................ 24

Brady, Patrick H., Chairman of the Board, Citizens Flag Alliance, and Recipient, Congressional Medal of Honor, Sumner, Washington ............................... 28

Bryant, Daniel J., Assistant Attorney General, Office of Legal Policy, Department of Justice, Washington, D.C. ..................................................................... 16

Korb, Lawrence J., Senior Fellow, Center for American Progress, Alexandria, 

Virginia ................................................................................................................. 31

May, Gary E., Associate Professor of Social Work, University of Southern 

Indiana, Evansville, Indiana ............................................................................... 33

Parker, Richard D., Williams Professor of Law, Harvard Law School, Cambridge, Massachusetts .......................................................................................... 35

QUESTIONS AND ANSWERS 

Responses of John Andretti to questions submitted by Senator Leahy .............. 46

Responses of Patrick Brady to questions submitted by Senator Leahy .............. 49

Responses of Daniel J. Bryant to questions submitted by Senator Leahy ......... 50

Responses of Lawrence Korb to questions submitted by Senator Leahy ............ 57

Responses of Gary May to questions submitted by Senator Leahy ..................... 59

Responses of Richard Parker to questions submitted by Senator Leahy ............ 61

SUBMISSIONS FOR THE RECORD 

American Bar Association, Dennis W. Archer, President, Washington, D.C., 

prepared statement .............................................................................................. 63

American Civil Liberties Union, Laura W. Murphy, Director and Terri A. 

Schroeder, Legislative Analyst, Washington, D.C., statement ......................... 70

American Legion: 

Brieden, John, National Commander, American Legion, Katherine Morris, National President, American Legion Auxiliary, and Neal C. 

Warnken, National Commander, Sons of the American Legion, letter .... 72

Severa, John N., Legislative Chairman, Tenth District, Forest Hills, New 

York, letter .................................................................................................... 73

Sundeen, Neal S., Department of Arizona, Phoenix, Arizona, letter ........... 74

Vaclav, Dan, Eighteen District, Bloomington, Illinois, letter ....................... 75 

Page

IV

American Merchant Marine Veterans, Henry Cap, National President, Cape 

Coral, Florida, letter ............................................................................................ 76

AMVETS, S. John Sisler, National Commander, Lanham, Maryland, letter ..... 77

Andretti, John, NASCAR Nextel Cup Series Driver, Mooresville, North Carolina, prepared statement ..................................................................................... 78

Brady, Patrick H., Major General (Ret.), Chairman of the Board, Citizens 

Flag Alliance, and Recipient, Congressional Medal of Honor, Sumner, 

Washington, prepared statement ........................................................................ 85

Brown, Morgan D., MSGT (Ret.), Manager, Legislative Affairs, Air Force 

Sergenats Association, Suitland, Maryland, statement .................................... 105

Bryant, Daniel J., Assistant Attorney General, Office of Legal Policy, Department of Justice, Washington, D.C., prepared statement .................................. 108

Burns, Thomas L., National Executive Committeeman, Department of Delaware, American Legion, statement ..................................................................... 114

Citizens Flag Alliance of Virginia, Kenneth Knight, Chairman, statement ....... 117

Comer, John P. (Jake), Past National Commander, American Legion, statement ...................................................................................................................... 118

Czech Catholic Union, Mary Ann Mahoney, President, Cleveland, Ohio, letter 128

Dellinger, Walter, Douglas B. Maggs Professor of Law, Duke University, 

Partner, O’Melveny & Myers, LLP, statement .................................................. 129

Elks Lodge No. 1679, Steve Gunter, Exalted Ruler, Sanford, North Carolina, 

letter ...................................................................................................................... 137

Flanagan, William J., National Executive Committeeman, Department Commander, American Legion, State of Illinois, statement .................................... 140

Fleet Reserve Association, Joseph L. Barnes, National Executive Secretary, 

Alexandria, Virginia, letter ................................................................................. 143

Fox Associates, Inc., Marlys Fox, President, Chicago, Illinois, letter ................. 144

Gard, Robert G., Jr., Lt. General, (Ret.), letter ..................................................... 145

Glenn, Hon. John, former Senator, John Glenn Institute for Public Service 

and Public Policy, Ohio State University, Columbus, Ohio, prepared statement ...................................................................................................................... 148

Gold Star Wives of America, Inc., Rose Lee, Past National President and 

Past Chairman of the Board, Arlington, Virginia, letter .................................. 152

Hungarian Reformed Federation of America, Rev. Stefan M. Torok, President 

and CEO, Washington, D.C., letter .................................................................... 156

Kerrey, Hon. Bob, former United States Senator, President, New School University, prepared statement ................................................................................ 157

Korb, Lawrence J., Senior Fellow, Center for American Progress, Alexandria, 

Virginia ................................................................................................................. 162

Korth, David A., National Executive Committeeman, Department of Wisconsin, American Legion, statement ................................................................... 165

Kreul, Keith A., former National Commander, American Legion, Fennimore, 

Wisconsin, prepared statement ........................................................................... 168

La Boutique Nationale, Marge Sheridan, Le Chapeau National, letter ............. 172

May, Gary E., Associate Professor of Social Work, University of Southern 

Indiana, Evansville, Indiana, prepared statement and attachment ................ 178

Mellor, William H., President and General Counsel, Institute for Justice, 

Washington, D.C., letter ...................................................................................... 189

National Alliance of Families, Dolores Apodaca Alfond, National Chairperson, 

POWs-MIAs, Washington, D.C., letter ............................................................... 190

National Association for Uniformed Services, Richard D. Murray, Major General, US Air Force, Retired, President, Springfield, Virginia, letter ............... 191

National Grange of the Order of Patrons of Husbandry, Leroy Watson, Legislative Director, Washington, D.C., letter ............................................................ 192

National Society of the Sons of the American Revolution, Raymond G. 

Musgrave J.D., President General 2003-2004, Louisville, Kentucky, letter ... 193

Neville, Robert F., National Executive Committeeman, Department of New 

York, American Legion, statement ..................................................................... 194

New York Air National Guard, 105th Air Lift Wing, SSgt. John Gassler, 

letter ...................................................................................................................... 197

Orchard Lake Schools, Rev. Msgr. Stanley E. Milewski, Chancellor Emeritus, 

Orchard Lake, Michigan, letter .......................................................................... 199

Parker, Richard D., Williams Professor of Law, Harvard Law School, Cambridge, Massachusetts, prepared statement ...................................................... 200

People for the American Way, Ralph G. Neas, President and Marge Bake, 

Director, Public Policy, Washington, D.C., letter .............................................. 211

Page

V

Polish American Congress, Edward J. Moskal, President, Washington, D.C., 

letter ...................................................................................................................... 214

Polish Roman Catholic Union of America, Wallace M. Ozog, National President, Chicago, Illinois, letter ............................................................................... 215

Powell, Colin L., General, USA, Retired, Alexandria, Virginia, letter ................ 216

Seniors Coalition, Chris Williams, Director of Public Affairs, Springfield, Virginia, letter ........................................................................................................... 217

Smith, Ray G., Past National Commander, American Legion, North Carolina, 

statement .............................................................................................................. 218

Tetreault, Donald T., National Executive Committeeman, State of Vermont, 

American Legion, statement ............................................................................... 221

Voiture Nationale, David R. Rabius, Correspondant National, Indianapolis, 

Indiana, letter ....................................................................................................... 223

Washington Post, Edward Walsh, March 3, 2004, article .................................... 224

Washington Times, Denise Barnes and Judith Person, October 26, 2003, 

article .................................................................................................................... 227

(1)

LETTING THE PEOPLE DECIDE: THE CONSTITUTIONAL AMENDMENT AUTHORIZING 

CONGRESS TO PROHIBIT THE PHYSICAL 

DESECRATION OF THE FLAG OF THE 

UNITED STATES 

WEDNESDAY, MARCH 10, 2004 

UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:13 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Orrin G. Hatch, 

Chairman of the Committee, presiding. 

Present: Senators Hatch, Craig, Leahy, Feinstein, Feingold and 

Durbin. 

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. 

SENATOR FROM THE STATE OF UTAH 

Chairman HATCH. If we can have your attention, we will begin 

this hearing. Before we get started, I just want to take a moment 

to acknowledge a number of very special members in the audience. 

We are honored to have the Utah delegation here, led by National Executive Committeeman Bill Cristoferson, who is also a 

very dear friend. So we are happy to have all of you here. 

I would also like to mention another Utahan who traveled here 

for today’s hearing, Mr. Paul Swenson. Paul is President and CEO 

of Colonial Flag and was generous enough to lend us a couple of 

huge flags that we had planned to hang in the hearing room. Unfortunately, we were not able to make arrangements to do that, but 

we appreciate Mr. Swenson’s generosity and interest very much, 

and we are going to use those flags. 

Rose Lee is the Board Chair of the Gold Star Wives. 

Rose, can you stand? We are so happy to have you here. Welcome. 

[Applause.] 

Chairman HATCH. We would also like to welcome all the members of the American Legion and the Citizens Flag Alliance. Your 

support is the reason why we are here today and the reason that 

this very important measure is seriously being considered by the 

Congress, and I want to thank you all for your good work. So 

please keep it up. 

Last, but certainly not least, we would like to welcome two distinguished members of the Knights of Columbus—Bill Mulvehill, 

Vice Supreme Master for Calvert Province, and Peter Jurvai, State 

2

Secretary for the District of Columbia State Council. We are so 

honored to have you here as well. 

[Applause.] 

Chairman HATCH. We are honored to have all the other guests 

who are here and those who are here to testify, and we will talk 

about that in a minute. 

I want to welcome everyone here today to this important hearing 

on S.J. Res. 4, the bipartisan proposed constitutional amendment 

to protect the American flag from acts of physical desecration. I 

have enjoyed working with all my Senate colleagues on this issue, 

and I look forward to hearing from today’s witnesses. 

In the past, this Committee has been fortunate to hear from a 

variety of witnesses who range from war veterans, Senators who 

were also war veterans, law professors, teachers and others from 

a variety of backgrounds. I can assure everyone that today’s panel 

of witnesses will once again provide us with wisdom and insight 

that we in the Senate need when considering this very important 

topic and issue. 

The American flag serves as the symbol of our great Nation. The 

flag represents, like nothing else can, the common bond shared by 

otherwise diverse people. As a sponsor and long-time supporter of 

this proposed constitutional amendment, I am pleased, but not surprised by the way Americans have been displaying the flag as a 

symbol of solidarity following the attacks of September 11th. In 

fact, many stores that sell American flags reported that following 

September 11th, they quickly sold out of flags and could not obtain 

replacements fast enough to replenish their stock. 

From the dawn of our country’s creation and continuing through 

this very moment, American soldiers have put their lives on the 

line to defend the flag and what it represents. My brother was one 

of them who was killed in the Second World War. I believe that we 

honor the sacrifices made by those who defended this country by 

protecting the flag in the manner it once enjoyed. 

From the lyrics penned by Francis Scott Key which are sung in 

our National Anthem to the unfurling of the flag at the Pentagon 

following September 11th—that flag now hangs in the Smithsonian—our people have turned to the American flag as a symbol of 

national unity and pride during times of crisis, and especially these 

crises. 

Whatever our differences of party, race, religion or socioeconomic 

status, the flag reminds us that we are very much one people, 

united in a shared destiny, bonded in a common faith in our Nation. Because our flag transcends our fellow citizens’ differences 

and our diversity as a Nation, it symbolized the love of liberty and 

the love of country felt by us as an American people. 

This symbolism stands in sharp contrast to the flags of those oppressive and totalitarian regimes such as Cuba, Nazi Germany, or 

even the former Soviet Union, which uniformly represented intolerance of free thought, oppression and coerced loyalty. 

In 1861, President Abraham Lincoln called our young men to put 

their lives on the line to preserve the Union. When Union troops 

were beaten and demoralized, General Ulysses S. Grant ordered a 

detachment of men to make an early-morning attack on Lookout 

Mountain, in Tennessee. When the fog lifted from Lookout MounVerDate 0ct 09 2002 12:39 May 02, 2005 Jkt 020540 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20540.TXT SJUD4 PsN: CMORC
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tain, the rest of the Union troops saw the American flag flying and 

cheered with a new-found courage. This courage eventually led to 

a Nation of free men, not half slave and half free. 

In 1941, President Franklin Roosevelt called on all Americans to 

fight the aggression of the Axis powers. After suffering numerous 

early defeats, the free world watched in awe as five Marines and 

one sailor raised the American flag on Iwo Jima after nearly 6,000 

American soldiers gave all that they had, their lives, to achieve this 

victory. Their undaunted, courageous act, for which three of the six 

men died, inspired the Allied troops to obtain victory over fascism. 

In 1990, President Bush called on our young men and women to 

go to the Mideast for Operation Desert Shield and Desert Storm. 

After an unprovoked attack by the terrorist dictator Saddam Hussein on the Kingdom of Kuwait, American troops wearing arm 

patches with the American flag on their shoulders led the way to 

victory. General Norman Schwarzkopf thanked the American people for their support and he stated this, quote, ‘‘The prophets of 

doom, the naysayers, the protesters and the flag-burners all said 

that you wouldn’t stick by us, but we knew better. We knew you 

would never let us down. By golly, you didn’t,’’ unquote. 

In 2001, the American flag was again called upon to inspire our 

men and women during time of war. For example, I am touched by 

the New York National Guard’s dedication of an American flag to 

the memory of Staff Sergeant Jerome Dominguez. Sergeant 

Dominguez, also a full-time New York City police officer, lost his 

life serving his fellow citizens in the World Trade Center attacks. 

The American flag dedicated to Sergeant Dominguez traveled to 

Bahrain with a team of his fellow 105th Security Forces when they 

participated in the overthrow of the Taliban during Operation Enduring Freedom. Later, this very flag was tasked with the solemn 

duty of overlooking several fallen military members during their 

final flight home after giving the ultimate sacrifice for their country during Operation Iraqi Freedom. 

I will place into the record an article written by Staff Sergeant 

John Grassler documenting this wonderful commemoration. 

We need to pass this flag amendment because in 1989, the Supreme Court abandoned 150 years of history and the intent of the 

First Amendment to embrace a philosophy that made no distinction 

between oral and written speech about the flag and extremist, disrespectful destruction of the flag. 

This striking contradiction was amply described by Chief Justice 

Rehnquist, who wrote, quote, ‘‘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,’’ unquote. 

When Congress responded with a Federal flag protection statute, 

the Supreme Court used its new and changed interpretation of the 

First Amendment to strike it down by another five-to-four vote. It 

is now clear that a constitutional amendment is the only legal 

means to protect the flag. And anybody who continues to say we 

ought to pass legislation is just using that as an excuse to not face 

up to this problem. Thankfully, the Constitution provides a method 

for peaceful and law-abiding citizens to amend the Constitution, 

and it is time to let our fellow citizens speak on this issue. 

4

Polls have shown that 80 percent of the American people want 

the opportunity to vote to protect the American flag. All 50 State 

legislatures have passed resolutions asking Congress to pass the 

amendment and send it to the States for consideration and ratification. Numerous organizations from the American Legion to the 

Women’s War Veterans to the African-American Women’s Clergy 

all support the flag protection amendment. We should not deprive 

the American public the right to express their view on this subject 

any longer. 

If the Senate passes the flag amendment this year, the nationwide debate over State ratification will be one of the greatest public 

discussions in American history. It will encourage a deeper study 

of our Nation’s history and our Nation’s values. It will inspire our 

young people to understand and appreciate the heroic selflessness 

displayed during this and previous generations, and it will cause 

many Americans to renew their faith in and commitment to the 

ideals and values of America that are greater than anyone’s personal self-interest. 

I am grateful to those of you who are here to testify today on either side of this issue. This is a free country and we should be able 

to express ourselves freely. But we ought to protect the flag, and 

we ought to protect it from acts of physical desecration even though 

some would argue that urinating or defecating on the flag is some 

form of speech. I don’t think that is so. I think it is offensive conduct that we ought to stand up against and do something about, 

and this is the opportunity for all of America to participate in a 

constitutional process that really makes sense. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

So with that, we will turn the time over to Senator Leahy, and 

then we will go to our witnesses. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Senator LEAHY. Thank you very much, Mr. Chairman. Our Committee is holding the latest in what has become a series of hearings 

on amending the Constitution. Of course, our Committee is the one 

that has the appropriate duty to do that. 

This is the third constitutional amendment to which this Committee has devoted significant time for debate in the 108th Congress. It is actually one of 61 amendments introduced so far this 

session. I believe we have a chart here showing that. These are the 

61 amendments to the Constitution that were introduced in this 

Congress alone. I think a number of members of this Committee 

are cosponsors of some of these. 

Now, that is 61 in one Congress. There have been probably a couple thousand amendments to the Constitution introduced since I 

was elected to the Senate. There have actually been 11,000 amendments to the Constitution proposed since the 1st Congress. Had 

these all been adopted, the Constitution of the United States, instead of being something that you could put in your shirt pocket, 

would fill up the whole front of this Committee room just to print 

them all. And Americans probably would not have any real idea of 

what our rights are under the Constitution. 

5

This is the second hearing in just a week’s time in which we are 

debating a constitutional amendment during this election year that 

would, in this case, amend the Bill of Rights for the first time in 

our Nation’s history. 

Now, I know the flag amendment is an issue of particular importance to veterans, whether it is my young Marine son or any other 

veteran here. I know that opinions are on both sides of this issue. 

I have gotten voluminous letters and e-mails from veterans in favor 

of this amendment and voluminous letters and e-mails from veterans opposed to this amendment. 

The one thing that we should all agree on is that this Nation has 

to be thankful for the service of these veterans to our Nation. No 

matter how we feel about this constitutional amendment, that is an 

area where we all agree. 

I also heard from a number of veterans who asked me if this 

amendment coming up at this time, especially just before we have 

our budget votes, may be a distraction on behalf of the administration so we might not look at what it is doing directly for or to veterans. Some of these veterans have written to me and asked me 

if maybe the administration believes that veterans might be distracted from the fact that the administration is failing to meet 

their long-term health and related needs. 

The reason I ask this is that I also serve on the Appropriations 

Committee, and I look at the budget from the Veterans Administration, and it tells me a lot about the Administration’s priorities. 

Here is the President’s budget for veterans. It doesn’t maintain 

current services. It falls $1.2 billion below what the VA says it 

needs. It is $2.9 billion below what veterans have put together on 

the independent budget. Out-of-pocket expenses for veterans have 

skyrocketed 478 percent under this administration. Even though Congress added $2.1 billion over the last 3 years 

over what the President requested, we still have a shortfall. In fact, 

it is interesting that when we have added the money to make up 

for the shortfalls in veterans benefits, this same administration has 

been very, very critical of the Congress for putting money in the 

veterans budget. 

I mention this because the letters I receive tell me about the 

longer waits at the VA hospitals, the extra costs, the out-of-pocket 

expenses, and so on. And I wonder if at the same time we are debating the budget for the veterans—many of whom are in town 

today—this hearing is designed to distract us from the fact that 

our veterans’ health care is being cut yet again. 

Now, I respect the views of veterans on both sides of this issue, 

of course. But I want to note some of the veterans who have opposed it. Senator John Glenn, who is a combat veteran, wrote, ‘‘The 

flag is the Nation’s most powerful and emotional symbol. It is our 

most sacred symbol. It is our most revered symbol. But it is a symbol. It symbolizes the freedoms that we have in this country, but 

it is not the freedoms themselves.’’ Senator Glenn, who served with 

distinction in World War II and in the Korean War and, of course, 

as an astronaut and a member of this Senate, feels this way. Senator Bob Kerrey, who is only one of two Senators I have served 

with who were recipients of the Congressional Medal of Honor, also 

opposes the amendment. 

6

They were invited to testify today, but they were given very short 

notice and were unable to change their schedules to do this. And 

the Committee was unable to rearrange its schedule to allow them, 

so I would ask that their statements be made part of the record. 

Chairman HATCH. Without objection. 

Senator LEAHY. Another veteran wrote to me, retired Four-Star 

General Colin Powell, now the Secretary of State in the Bush administration. He wrote in opposition to the proposed amendment. 

He said, ‘‘We are rightly outraged when anyone attacks or desecrates our flag. Few Americans do such things and when they do 

they are subject to the rightful condemnation of their fellow citizens. They may be destroying a piece of cloth, but they do no damage to our system of freedom which tolerates such desecration.’’ Referring to the Constitution, General Powell continued, ‘‘I would not 

amend that great shield of democracy to hammer a few miscreants. 

The flag will still be flying proudly long after they have slunk 

away.’’ 

I would ask, Mr. Chairman, that Secretary Powell’s letter be part 

of the record. 

Chairman HATCH. Without objection. 

Senator LEAHY. I know how offended any one of us gets when we 

see desecration of the flag. I remember during the Super Bowl halftime show the thing that offended me the most was when Kid Rock 

wore a flag as a pancho and then just tossed it away on the ground 

afterwards. In fact, my wife had to get me to stop shouting at the 

television when I watched that. There was a lot of publicity about 

something else at that halftime show. Frankly, I missed that and 

never saw that, but, boy, I saw that flag being flown out there and 

worn as a pancho. 

I am certainly as patriotic a person as anybody, as is the President, but I know that he signed a flag at a campaign rally last 

summer. Under this amendment, that would be also inappropriate. 

But these acts are protected by the Constitution. 

All of us agree that flag desecration is a despicable and reprehensible act, but the true question before us is not whether we agree 

with that. All of us agree it is contemptible. The issue before us 

is whether we should amend the Constitution of the United States, 

with all the risks that entails, and whether for the first time in our 

history we should narrow the freedoms ensured by the First 

Amendment. 

As Supreme Court Justice Brennan wrote, ‘‘We can imagine no 

more appropriate response to burning a flag than waving one’s 

own.’’ That is exactly how the American people respond, a point 

demonstrated by the innate patriotism of Americans in response to 

events of the past years, as Chairman Hatch pointed out so eloquently a few minutes ago, with the sale of flags after 9/11. 

But the Chairman did say this constitutional amendment is the 

only way to protect our flag. I disagree. At my home in Vermont, 

I live on a dirt road, a very rural, very picturesque area. All the 

neighbors know when the Leahys are home because the flag is flying, as it has for the 30 years I have been a Senator. That flag is 

protected by Vermont law, a State constitutional law. 

If somebody came on my property and took that flag and desecrated it, and assuming there was much left of them after I finVerDate 0ct 09 2002 12:39 May 02, 2005 Jkt 020540 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20540.TXT SJUD4 PsN: CMORC
7

ished with them, they could be prosecuted under Vermont law. If 

they did the same thing in Utah, they could be prosecuted under 

Utah law. 

The flags in this room are all protected. If anybody desecrated 

one of these flags, the police officers here would arrest them. They 

could be prosecuted for defacing Federal property. There are laws 

that protect any flag that is flown at your home. If somebody came 

and desecrated your flag, they could be prosecuted for both trespass and destruction of your property. 

What I am suggesting is that the thing we must protect the most 

is our sacred Constitution. When I go to countries where there are 

dictators they have to have all kinds of laws to protect themselves. 

You cannot criticize their president or their prime minister, or 

whomever. You can’t criticize the symbols of their state or you will 

go to jail. They enact these laws to keep their people in line. 

I love bragging about the fact that Americans can criticize anybody. I talk about people who have rallies to criticize me or anybody else, and that we Americans protect our flag. We protect it 

without laws to require doing so. We do it because we love the symbols of our country, and it makes me feel good to tell some of these 

dictators we don’t need to do what they do; we don’t need those 

kinds of protections. 

Immediately after September 11th, the surge in patriotism made 

American flags such a hot commodity that several major flag manufacturers could not keep flags stocked on store shelves. We don’t 

need to teach Americans how to respect the flag. The American 

people have shown they respect the flag. 

In the neighborhood I live in when I am here in Washington during session, there are a number of homes owned by foreign embassies. The day after September 11th, Mr. Chairman, I walked down 

those streets and all those homes were flying both their national 

flag and the U.S. flag. I went by and left a hand-written note in 

every single one of their mailboxes thanking them for that. 

Freedom of speech and the press is one of the magnificent bequests of earlier Americans to all the generations that follow. 

These rights are fragile and they need nurturing and protection by 

every new generation. The erosion of freedom can easily come when 

lawmakers succumb to the temptation to pander to shifting public 

passions, at the expense of the public’s everlasting interest in preserving freedom. In any session of Congress, you do not have to 

look far to see this dynamic at work. 

It may not be politically popular to defend against erosive efforts 

like this, but generations of Americans to come will thank us if we 

leave for them the same First Amendment that we ourselves inherited and so dearly treasure, the same First Amendment that generations before us tried to change and did not. 

Mr. Chairman, I think you do us all a service in having this 

hearing. And while we may disagree on the basic thing, you know 

of my deep respect and affection for you. 

[The prepared statement Senator Leahy appears as a submission 

for the record.] 

Chairman HATCH. Well, thank you, Senator. 

We will turn to Senator Craig and the rest of the Committee for 

short statements, and we will go back and forth. 

8

Senator Craig. 

STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR FROM 

THE STATE OF IDAHO 

Senator CRAIG. Well, thank you very much, Mr. Chairman. 

For those of you in the audience today who wonder why I am so 

far away from the dias, I am a junior on this Committee, so it is 

something to do with seniority. But I must say after Senator Leahy’s comments, I am glad there is a little distance between us 

today because I do disagree with him on a variety of things. Of 

course, that is the beauty of the diversity that is demonstrated in 

this wonderful country of ours as we express our opinions on this 

issue. 

The thing that frustrates me most, after the House has consistently spoken out in a resolution for a flag amendment, is that the 

Senate by its action is denying the people the opportunity to speak. 

There is a fundamental difference here. It is not our Constitution, 

not that of the United States Senate. The Constitution is a phenomenally valuable foundational law of this country designed by 

the people. 

To deny all 50 States an opportunity to express that opinion, and 

a vast majority of the American people, I think is the wrong denial. 

I do believe it is time that we bring forth a constitutional amendment and send it to the States to allow the American people to express their opinion. 

I do agree with the Chairman that that becomes a phenomenally 

healthy debate for all Americans, because I am one who believes 

that we must consistently remind our citizens of their rights and 

of their Constitution. I don’t think it is something that just because 

you are born here, that action in itself imbues totally with a knowledge and understanding of those fundamentals. Healthy national 

debates reinstate that. 

When we were celebrating the bicentennial of the Constitution, 

more young people learned once again about the value of that wonderful document than they had learned ever before. Why? Because 

it is not faddish anymore to teach it in our schools. Somehow, our 

schools get caught up in contemporary issues and fail in many instances to teach some of the foundational principles that this country was built upon. 

So for a variety of reasons, including the most obvious, I think 

it is time that we send forth this amendment, not because the Senate has decided it should or should not happen, although that is 

one of our responsibilities and the method by which this Constitution is amended, but because the States have so loudly spoken and 

because I believe it our responsibility to allow the American people 

to be granted that opportunity to speak. 

With that, Mr. Chairman, I have always felt that while the Supreme Court has a valuable role to play in this country, they are 

not given the right, if you will, to write the laws. That is our job 

and that is the job of the American people. That is why I strongly 

support this amendment. 

Chairman HATCH. Well, thank you, Senator. 

Senator CRAIG. Let me ask unanimous consent that my full 

statement be a part of the record. 

9

Chairman HATCH. Without objection. 

Senator CRAIG. And as somebody who is an active member of the 

Veterans Committee, we are going to plus-up veterans budgets 

again this year, as we did last year and the year before, and as we 

consistently did also during the Clinton years. 

It is important, I think, for everybody to understand that while 

there was an element of partisan expression here this morning, the 

reality is that we will do exactly what we have historically done as 

a Senate both during the Clinton years and now the Bush years, 

and that is to plus-up veterans budgets. 

I was at the Veterans Administration facility in my hometown 

now of Boise this past weekend, where there once were lines. By 

June, there will be no lines anymore. Why? Because we set that administrative process together to aggressively pursue and bring on 

people to resolve that problem, and we are doing it. 

I would encourage all Senators to encourage their veterans facilities to do the same, because they have been granted the money to 

get it done and now it is an administrative problem, in my opinion, 

much more than it is a dollars-and-cents problem. We have been 

able to prove that in Idaho. There will be no waiting lists as of 

June of this year in Idaho and I am proud of that fact. 

Thank you, Mr. Chairman. 

[The prepared statement Senator Craig appears as a submission 

for the record.] 

Chairman HATCH. Thank you, Senator Craig. 

Senator Feingold. 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman, and I would like 

to welcome our witnesses today. As the Ranking Member pointed 

out, this is our second hearing in two weeks on a constitutional 

amendment. The amendment we discussed last week would for the 

first time write discrimination into our Constitution. This week, we 

are discussing an amendment that would for the first time amend 

the Bill of Rights. 

Make no mistake, we are talking here today about amending the 

Constitution of the United States to permit the Government to 

criminalize conduct that, however misguided, is clearly expressive 

and is often undertaken as a form of political protest. Adopting this 

amendment would be a grave mistake. 

It seems almost silly to say this, but given some of the written 

testimony of some of the witnesses today, I must say it anyway. 

Not a single Senator who opposes the proposed constitutional 

amendment, as I do, supports burning or otherwise showing disrespect to the flag, not a single one. None of us thinks it is okay 

to burn the flag. None of us views the flag as just a piece of cloth. 

On those rare occasions when some malcontent defiles or burns 

our flag, I join every single person on this dais, whether they are 

way down there or right up here near the Chairman, and in this 

room and in this country, who condemns that action. At the same 

time, whatever the political cost, I will defend the right of Americans to express their views about their Government, however hateVerDate 0ct 09 2002 12:39 May 02, 2005 Jkt 020540 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20540.TXT SJUD4 PsN: CMORC
10

ful or spiteful or disrespectful, without fear of their Government 

putting them in jail for those views. 

Mr. Chairman, America is not a nation of symbols. It is a nation 

of principles, and the most important principle of all, the principle 

that made this country the beacon of hope and inspiration for oppressed peoples throughout the world, is the right of free expression. This amendment, well-intentioned as it may be, threatens 

that right and therefore I must oppose it. 

I respectfully disagree with the supporters of the amendment 

about the effect that this issue has on our children. We can send 

no better, no stronger, no more meaningful message to our children 

about the principles and values of this country than if we explain 

to them, as it was explained to me, that the beauty and the 

strength of this country is in its freedoms, not in its symbols. 

When we uphold First Amendment freedoms, despite the efforts 

of misguided and despicable people who want to provoke our wrath, 

we really explain what America is really about. Our country and 

our people are far too strong to be threatened by those who would 

burn a flag. That is a lesson worth teaching our children. 

Amending the First Amendment so we can bring the full wrath 

of the criminal law and the power of the state down on political dissenters will only encourage more people who want to grandstand 

their dissent and imagine themselves to be, in effect, martyrs for 

the cause. 

We all know what will happen the minute this amendment goes 

into force—more flag-burnings and other despicable acts of disrespect to the flag, not fewer. Will the new law deter these acts? 

Of course not. Will the amendment make these acts any more despicable than they are today? Certainly not. Will it make us love the 

flag any more than we do today? Absolutely not. 

It was just under 4 years ago, in 2000, another presidential election year, that the Senate rejected this constitutional amendment. 

I would be interested to hear from our witnesses what has changed 

in the last 4 years. Have we seen an alarming increase in the incidence of flag-burning? Has there been a marked decrease in patriotism or in the proud display of the flag on national holidays? Have 

the armed forces seen a huge drop in enlistment, or have soldiers 

faced disrespectful protests of the sacrifices that they and their 

families make? Of course not. 

I would venture to say, Mr. Chairman, that outward displays of 

patriotism are on the rise since we last considered this amendment. 

We all know why that is. Our country was viciously attacked on 

September 11th and America responded. We didn’t need a constitutional amendment to teach our citizens how to love their country. 

They showed us how to do it by hurling themselves into burning 

buildings to save their fellow citizens who were in danger, by 

standing in line for hours to give blood, by driving hundreds of 

miles to search through the rubble for survivors and help in cleanup efforts, by praying in their houses of worship for the victims of 

the attacks and their families. September 11th inspired our citizens 

to perform some of the most selfless acts of bravery and patriotism 

we have ever seen in our entire history. I believe that no constitutional amendment could ever match those acts as a demonstration 

of patriotism, or create them in the future. 

11

Mr. Chairman, in 1999 our late colleague Senator John Chafee, 

one of this country’s greatest war heroes at Guadalcanal and in the 

Korean War, testified against this amendment. He said, ‘‘We cannot mandate respect and pride in the flag. In fact...taking steps to 

require citizens to respect the flag sullies its significance and symbolism.’’ Senator Chafee’s words still bring us a brisk, cool wind of 

caution. What kind of symbol of freedom and liberty will our flag 

be if it has to be protected from protesters by a constitutional 

amendment? 

Mr. Chairman, I do thank you for this hearing, but I will proudly 

defend the Constitution against this ill-advised effort to amend it. 

Thank you, Mr. Chairman. 

[The prepared statement Senator Feingold appears as a submission for the record.] 

Chairman HATCH. Thank you. 

Senator Durbin is next. 

STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 

FROM THE STATE OF ILLINOIS 

Senator DURBIN. Thank you very much, Mr. Chairman. I want 

to thank the veterans and representatives of veterans organizations, including the American Legion, who have joined us today. 

We thank you for your service to our Nation and your continuing 

effort to stand up for the values that you fought for and to stand 

up for veterans. 

The issue of a constitutional amendment to prohibit flag desecration isn’t easy. Even many veterans disagree. We will have testimony from one today who represents an organization of veterans 

who oppose this amendment. 

Secretary of State Colin Powell, whom I respect very much, 

wrote a letter to this Committee in 1999 as a retired General and 

here is what he told us in relation to this amendment and the outrage we feel about those who desecrate the flag. 

Former General and Secretary of State Colin Powell wrote and 

said, ‘‘I feel the same sense of outrage, but I step back from amending the Constitution to relieve that outrage. The First Amendment 

exists to ensure that freedom of speech and expression applies not 

just to that with which we agree or disagree, but also to that which 

we find outrageous. I would not amend that great shield of democracy to hammer a few miscreants. The flag will be flying proudly 

long after they have slunk away.’’ 

I believe Congress can honor veterans and the values they stand 

for in many ways. Last night, the United States Senate voted on 

an amendment to add $2.7 billion to this year’s budget for veterans 

medical care. It would have provided this funding by reducing the 

tax cuts for millionaires from $140,000 a year to $112,000 a year, 

and the money would have gone to veterans health care. The 

amendment failed. 

Many of the same Senators who proudly tell you that they are 

standing with veterans didn’t stand with them on that roll call. 

Giving a veteran a flag is no substitute for giving our vets the quality health care they were promised. That promise was not kept last 

night on the Senate floor. 

12

Today’s hearing is the sixth that we have had in the Judiciary 

Committee at the full Committee or Subcommittee level on possible 

constitutional amendments during this Congress. This week’s 

amendment relates to flag desecration, but many others have been 

considered. 

This amendment is a strong argument for my proposal that Congress ban constitutional amendments during a presidential election 

year. The last time we voted on this issue was March 2000. The 

time before that would have just barely missed my deadline, December of 1995. I don’t want to impugn anyone’s political motives, 

but isn’t it odd that we start thinking very seriously about debating 

constitutional amendments the closer we get to an election? It 

raises questions in my mind. 

Our First Amendment rights are envied around the world. In 

fact, earlier this week we saw something really historic. The Iraqi 

people, struggling toward self-government, established their own 

constitution and protected within their constitution, this document 

of this new nation, the freedom of thought, conscience and expression. They learned from us, and thank God. 

I believe flag desecration, although shameful and disgusting, is 

a form of political expression. By prohibiting it, this constitutional 

amendment would amend the Bill of Rights for the first time in the 

history of the United States. 

Last night, the members of the Senate met at the Archives. We 

had a chance to once again see the document which guides our Nation, the Constitution—a rare bipartisan display, our families together seated for dinner just a few feet away from that magnificent 

document. That document, that piece of paper and the words on it 

are one of the few things that we have in common. All of us have 

sworn to uphold and defend that Constitution. 

I, for one, approach the idea of amending that Constitution with 

extreme humility. I don’t want to be in a position where I am supporting an amendment which doesn’t stand the test of Thomas Jefferson and the test of the Bill of Rights and the test of the greatness of that document. We need to think long and hard every single 

time someone steps forward and says it is just another legal document, go ahead and change it. 

No. I am sorry. That is not the way I view it. I will think long 

and hard before I change a single word in that Constitution, and 

it will have to meet some very high tests before we establish the 

need for that change. 

The flag is a unique and sacred symbol. Senator Byrd, a man 

who carries the Constitution in his breast pocket every day that he 

has served in the U.S. Senate, a man who has stood up for it probably more than any of us ever will, said during the debate in the 

year 2000, quote, ‘‘We love that flag, but we must love the Constitution more. The Constitution is not just a symbol, it is the thing 

itself.’’ I urge my colleagues to join me in opposing this amendment. 

Thank you, Mr. Chairman. 

Chairman HATCH. Thank you. 

Senator Feinstein. 

13

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR 

FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. Thank you very much, Mr. Chairman, and 

thank you very much for holding this hearing. 

I have supported this amendment for several years and I am an 

original cosponsor of the current resolution, S.J. 4, which proposes 

an amendment to the Constitution of the United States authorizing 

Congress to prohibit the physical desecration of the flag of the 

United States. This resolution would give Congress the opportunity 

to construct, deliberately and carefully, precise statutory language 

that clearly defines the contours of prohibited conduct. 

Now, I know that amending the Constitution is serious business 

and I know that we need to tread carefully. But the Constitution, 

after all, is a living text. As originally conceived, it had no Bill of 

Rights. In all, it has been amended 27 times. 

If the Constitution is democracy’s sacred text, then our flag is 

our sacred symbol. In the words of Supreme Court Justice John 

Paul Stevens, it is a symbol of our freedom, of equal opportunity, 

of religious tolerance and of goodwill for other peoples who share 

our aspirations. 

If the flag had no symbolic value, we would not get chills when 

we see it lowered to half-mast or draped over a coffin. Are there 

any of us who can forget that great Joe Rosenthal photograph of 

the six Marines hoisting that flag on the barren crag of Mount 

Surabachi, after the carnage at Iwo Jima where over 6,800 American soldiers were killed? 

I remember seeing it on the front page of the San Francisco 

Chronicle. Joe Rosenthal was a photographer for the Chronicle. I 

remember seeing it as a small child and recognizing from that 

point on that the flag was something special. 

I was again reminded of our flag’s significance after the horrific 

attacks on the World Trade Center on September 11, 2001, when 

firefighters Dan McWilliams, George Johnson and Bill Eisengrein 

raised the American flag at Ground Zero. It symbolized an entire 

nation pulling together in the face of tragedy. 

That photograph ran in thousands of newspapers, on the Internet, on network television, an image which will forever be identified with 9/11. It immediately drew comparisons to the photo of the 

Marines raising the flag at Iwo Jima during World War II. And to 

this day, those images remained etched deeply in the minds of so 

many Americans, and indeed so many people around the world. 

Constitutional scholars as diverse as Chief Justices William 

Rehnquist and Earl Warren, and Associate Justices Stevens and 

Hugo Black, have vouched for the unique status of the national 

flag. In 1974, Byron White said, and I quote, ‘‘There would seem 

to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial, or to prevent overlaying it with 

words or other objects. The flag is in itself a monument subject to 

similar protection,’’ end quote. I could not agree more with the 

opinion of Justice White. 

Why, then, should it be permissible conduct to burn the flag, to 

desecrate it, to destroy this symbol, this emblem, this National 

monument? That is not my definition of free speech. For the first 

two centuries of this Nation’s history, that was not the Supreme 

14

Court’s definition of free speech either. In fact, until the Court’s 

1989 decision in Texas v. Johnson, 48 of the 50 States had laws 

preventing burning or otherwise defacing our flag. 

As I said at the outset, I don’t take amending the Constitution 

lightly. But when the Supreme Court issued the Johnson decision 

and the subsequent United States v. Eichman decision, those of us 

who want to protect the flag were forced to find an alternate path. 

In the Johnson case, the Supreme Court by a 5–4 vote struck 

down a State law prohibiting the desecration of American flags in 

a manner that would be offensive to others. The Court held that 

the prohibition amounted to a content-based regulation. 

After the Johnson case was decided, Congress passed the Flag 

Protection Act of 1989. That Act prohibited all intentional acts of 

desecrating the American flag, and was therefore not a contentbased prohibition of speech or expression. Nevertheless, another 

narrow majority of the Supreme Court Justices acted quickly to 

strike down that Federal statute, as well, ruling that it suffered 

the same flaw as the Texas statute in the Johnson decision, and 

was thus inconsistent with the First Amendment. That 5–4 decision makes today’s discussion necessary. 

I support S.J. Res. 4 because it offers a way to return the Nation’s flag to the protected status it deserves. Because we are protecting our National symbol, it makes sense to me that members 

of Congress representing the Nation as a whole should craft the 

statute protecting our flag. 

I also believe the amendment is consistent with free speech. I 

disagree with those who say we are making a choice between trampling on the flag and trampling on the First Amendment. Protecting the flag will not prevent people from expressing their ideas. 

I support this amendment because I believe flag-burning is content, not speech, and can be regulated as such. But to my friends 

who would argue otherwise, I remind them that even the right to 

free speech is not unrestricted. For example, the government can 

prohibit someone from shouting ‘‘fire’’ in a crowded theater. Obscenity and false advertising are not protected under the First 

Amendment, and indecency over the broadcast media can be limited to certain times of day. 

I recognize that by supporting a constitutional amendment on 

the flag, I am choosing a different course from many of my fellow 

Democrats in Congress, and quite frankly from many of my close 

friends for whom I have the greatest respect. But my support for 

this amendment reflects my broader belief that the time has come 

for the Nation to begin a major debate on our values. We need to 

ask ourselves what we hold dear. Is there anything upon which we 

will not cast our contempt? 

There are mothers and fathers, wives, husbands and children 

who have received that knock on their front door and have been 

told their loved one has been killed in the line of duty. They have 

been given a flag on this occasion, a flag which helps preserve the 

memory of their loved one and which speaks to his or her courage. 

That flag is the symbol, the emblem, the national monument. Requiring people to stop defacing or burning the flag is a very small 

price to pay on behalf of millions of Americans for whom the flag 

has deep personal significance. 

15

I would like to express my thanks to all who will be testifying 

today and I look forward to hearing your statements. 

Thank you, Mr. Chairman. 

Chairman HATCH. Well, thank you, Senator Feinstein, for your 

eloquent statement. 

I am going to put several letters and statements of support into 

the record, without objection. 

Senator LEAHY. Mr. Chairman, if I could also submit a number 

of letters. 

Chairman HATCH. Without objection. 

Now, we will turn to our witnesses. We have a remarkably distinguished line-up of witnesses today and we are pleased that each 

of you could be here to share your expertise and point of view with 

us. 

Our first witness will be Hon. Daniel J. Bryant, if you will take 

your seat, General Bryant. 

He is Assistant Attorney General for the Office of Legal Policy 

in the Department of Justice. Mr. Bryant needs no introduction to 

this Committee, so I will just mention that he was confirmed to his 

current post in October 2003. Prior to that, he served as Assistant 

Attorney General for Legislative Affairs. 

We are really pleased to have you here, and I am, of course, 

pleased that the Bush administration supports S.J. Res. 4. 

The second panel of witnesses will include General Patrick 

Brady, Chairman of the Citizens Flag Alliance. General Brady is 

undoubtedly one of the flag amendment’s most passionate and articulate spokespeople. I appreciate all of his work, as well as the 

work of the dedicated members of the CFA, the Citizens Flag Alliance. 

Next will be Lawrence J. Korb, who is Senior Fellow at the Center for American Progress, the Adjunct Senior Fellow at the Council on Foreign Relations, and senior adviser for the Center for Defense Information. From 1981 to 1985, he was Assistant Secretary 

of Defense for Manpower, Reserve Affairs, Installations and Logistics. He is a 23-year Navy and Vietnam War veteran. 

So we appreciate your willingness, Larry, to testify here today. 

We are probably going to have Mr. Andretti speak first, since he 

has to catch a plane. John Andretti is a native of Bethlehem, Pennsylvania, who has won major victories in Indy cars and sports cars, 

and is now a highly-respected NASCAR Nextel Cup Series driver 

for Dale Earnhardt, Inc. He is the nephew of the legendary Mario 

Andretti and the godson of renowned Indy car pilot A.J. Foyt. 

I have read that Mr. Andretti is the first NASCAR driver to ever 

testify before the United States Senate. 

Senator LEAHY. Mr. Chairman, if I could interrupt there, you say 

he has got to hurry to get a plane. The way Mr. Andretti drives 

and his uncle drives and all, why would he slow down to take an 

airplane? 

[Laughter.] 

Chairman HATCH. Well, I have a feeling he is going to be able 

to get to the airport on time. We will put it that way. 

We want to thank you for sharing your experience and views 

with us. 

16

Gary E. May is Associate Professor of Social Work at the University of Southern Indiana, in Evansville. He served in the Marines 

in the Vietnam War, where he was awarded the Bronze Star, the 

Purple Heart, Vietnam Campaign, Vietnam Service and National 

Defense Medals. 

So it is a pleasure to see you here again. 

Last, but certainly not least, we will hear from Professor Richard 

D. Parker, who is the Paul W. Williams Professor of Criminal Justice at the Harvard Law School. Professor Parker has been a great 

resource to the supporters of the flag amendment and I would like 

to thank him for that and for his testimony here today. 

So with that, we will call on you, General Bryant, and then we 

will put the rest of our witnesses at the table. 

STATEMENT OF DANIEL J. BRYANT, ASSISTANT ATTORNEY 

GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. BRYANT. Thank you, Mr. Chairman, Senator Leahy, members of the Committee. Here on behalf of the administration, I 

would probably be well advised to not make an opening statement, 

but simply ask that Senator Feinstein’s statement be entered into 

the record twice. That was an extraordinary statement and I was 

glad to hear it. 

Mr. Chairman, I will make a shortened opening statement and 

simply ask that the full statement be entered into the record. 

Mr. Chairman, distinguished members of the Committee, thank 

you for the opportunity to join you today to reiterate the administration’s continuing support for a constitutional amendment authorizing Congress to protect the American flag from physical desecration. The President joins a majority of members from both 

Houses of Congress in supporting this constitutional amendment to 

protect and honor this singular symbol of the American democratic 

ideal. 

Let me state at the outset that we do not believe that amending 

the Constitution is something to be undertaken lightly. Altering 

the Constitution is a weighty matter, but one that we believe is 

warranted to protect the unique, enduring symbol of our great Nation. 

It is noteworthy that Americans overwhelming refer to the flag 

as the American flag, not the United States flag. In a simple way, 

this habit provides an insight, I think, into the way we as Americans associate with the flag. It is not simply the flag of a particular 

constitutional system, that of the United States. Rather, it is the 

flag of us as a people. Over the centuries, in war and in peace, it 

has become an integral part of our identity as Americans. The administration believes that the Congress should allow the American 

people to accord the flag, our flag, the respect and corresponding 

protection it deserves. 

It is important to note that throughout most of our Nation’s history, protecting the flag was permitted under the Constitution. 

Since the 1800’s, protecting the flag peacefully coexisted with the 

Bill of Rights and a vigorous commitment to First Amendment-protected expression. Consequently, an amendment to restore that hisVerDate 0ct 09 2002 12:39 May 02, 2005 Jkt 020540 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20540.TXT SJUD4 PsN: CMORC
17

toric understanding poses no threat to our constitutional tradition. 

Indeed, it would honor and strengthen that tradition. 

There is no question that a great strength of our Constitution is 

that it has been a relatively fixed and stable document. This 

amendment would allow Congress to restore the fixed and stable 

understanding that we as a people can both protect our flag and 

maintain a zealous commitment to freedom of expression. 

There can be no doubt that under the current interpretation of 

the First Amendment, as articulated by the Supreme Court in 

Texas v. Johnson and U.S. v. Eichman, physical desecration of the 

American flag in protest is protected speech. Since 1989, attempts 

by Congress and by State legislatures to pass statutes to protect 

the flag have been struck down by the United States Supreme 

Court. Against this backdrop, it is clear that the only way the flag 

can be protected is through an amendment such as the one proposed by S.J. Res. 4 currently before this Committee. 

In closing, Mr. Chairman, S.J. Res. 4 is a simple measure providing in relevant part, quote, ‘‘The Congress shall have power to 

prohibit the physical desecration of the flag of the United States,’’ 

close quote. It is important to note that the resolution itself does 

not prohibit the physical desecration of the flag, but merely provides that Congress may do so. This will allow the democraticallyelected legislature to decide how best to protect the flag from desecration. 

Furthermore, as with any resolution to amend the Constitution, 

by passing this resolution Congress is not itself amending the Constitution, but is simply providing the States an opportunity to deliberate and ultimately decide whether the Constitution should 

allow Congress to protect the American flag. 

For more than a decade now, 49 States have petitioned the Congress for that opportunity. We hope that Congress heeds their call. 

James Madison wisely counseled that amending the Constitution 

should be reserved for great and extraordinary occasions. We believe that this is such an occasion. 

Thank you, Mr. Chairman and members of the Committee. 

Chairman HATCH. Well, thank you, Mr. Bryant. 

Let me just ask a couple of questions, and hopefully we will all 

stay within a five-minute question period. 

Each time the Senate has considered a constitutional amendment 

that would allow Congress to prohibit physical desecration of the 

flag, quite a few members of this body who voted against this 

amendment have argued that passing a new statute would suffice. 

I have always found that intriguing. They don’t think we should 

pass a constitutional amendment because they believe that burning 

the flag with contempt and doing other contemptuous physical acts 

of desecration happens to be speech, and yet they will vote for a 

statute, which is amazing to me. It looks pretty political to me, not 

sincere. It probably won’t surprise you that I disagree with their 

conclusion that you can pass a statute. 

Given the Supreme Court’s decisions in the Johnson and the 

Eichman cases, do you think that a so-called statutory alternative 

would survive scrutiny by the United States Supreme Court? 

Mr. BRYANT. No, Mr. Chairman. Thank you for the question. I 

think one could have construed the first case, Texas v. Johnson, as 

18

permitting a statute to be drafted that might pass muster under 

the various principles articulated in Johnson. I think 1 year later, in U.S. v. Eichman, that potential for drafting a statute that would pass constitutional muster was taken off 

the table. Eichman came out and declared quite definitely that 

flag-burning is protected speech. So whereas Johnson, in effect, left 

the door open to a statute, Eichman, I think, very much closed that 

door. 

Chairman HATCH. Now, you testified that the administration 

supports allowing the American people, through their representatives in the State legislatures, the opportunity to vote on whether 

to adopt an amendment that would allow for a prohibition on flag 

desecration. 

As you know, the proposed amendment has passed the House of 

Representatives a number of times and is a very few votes away 

from passage in the Senate. In other words, we always have an 

overwhelming vote, but we have missed it by a few votes in the 

Senate. We have a new Senate now and I think we have an opportunity to maybe get it passed this year. 

Is it the administration’s view that it would be healthy for our 

democracy and for our system of federalism for the Senate to pass 

S.J. Res. 4 and put this matter in the hands of the people out there 

in the States? 

Mr. BRYANT. Yes, thank you, Mr. Chairman. That is the position 

of the administration. It is the position of many in Congress. It is 

the position of the majority of States, and apparently a majority of 

the American people. 

The Constitution wisely provided for the ability to amend the 

Constitution in its Article V. The American people, State legislatures and the Congress have used that mechanism 27 times. As 

Senator Leahy pointed out, some 11,000 resolutions proposing 

amendments to the Constitution have been offered over the course 

of our country’s history; 27 have been taken by State legislatures 

and the Congress and have been promulgated as amendments. 

It is telling to see how specific amendments were passed as a response to Supreme Court decisions. The 11th Amendment, the 13th 

Amendment, the 14th Amendment, the 16th Amendment all are 

examples of the people, the State legislatures and the Congress 

taking up their Article V opportunity to respond to Supreme Court 

decisions. We think that Article V and the opportunity that is enjoyed by the States and Congress to amend the Constitution brings 

a vital democratic legitimacy to the Constitution and to judicial review itself. 

Chairman HATCH. Well, thank you. One last question. One of the 

most common reactions to the idea of the flag amendment is that 

we should not make anything illegal by way of a constitutional 

amendment. As you pointed out, however, my proposed amendment 

would not make anything illegal. It simply gives Congress the 

power to prohibit flag desecration if it chooses to do so. It is that 

simple. In other words, the elected representatives will make this 

decision, not five unelected Justices on the United States Supreme 

Court. 

If the amendment were passed and ratified and Congress began 

the task of writing a law, would the administration provide techVerDate 0ct 09 2002 12:39 May 02, 2005 Jkt 020540 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20540.TXT SJUD4 PsN: CMORC
19

nical support to ensure that any implementing legislation accomplishes what is desired and avoids any unintended consequences? 

Mr. BRYANT. We would be pleased to, Mr. Chairman. We think 

the Congress did a very good job back in 1989 with the Flag Desecration Act, given the guidance that it had under Texas v. Johnson. 

Subsequently, when the Supreme Court decided in U.S. v. 

Eichman, it became clear that the statute drafted would not pass 

muster with the Supreme Court. But given the guidance it had at 

the time, we think the U.S. Congress did a good job. 

We would be pleased now, on this side of United States v. 

Eichman, to continue to work with the Committee and the Congress to ensure that any language statutorily passed pursuant to 

an amendment avoided the various potential challenges that might 

arise. 

Chairman HATCH. Well, thank you so much. 

We will turn to Senator Leahy now. 

Senator LEAHY. Thank you. 

Mr. Bryant, one thing that we all agree on here is that we are 

all heartened by the news that Attorney General Ashcroft has come 

safely out of surgery. I have written to him and Mrs. Ashcroft, but 

please pass on the best wishes of everybody here for a speedy recovery, and we look forward to seeing him back up here. 

Also, Mr. Chairman, I want to put in the record a statement by 

Senator Kohl. 

Chairman HATCH. Without objection. 

Senator LEAHY. Mr. Bryant, under current law, I assume there 

is no question in your mind that if somebody came up here suddenly and smashed the loud speaker system, which is Government 

property, they could be prosecuted for that. Is that correct? 

Mr. BRYANT. Yes, sir. 

Senator LEAHY. And the same would apply if they came up here 

and destroyed the flags which are here and are Government property. They could be prosecuted for that, could they not? 

Mr. BRYANT. Yes, sir. 

Senator LEAHY. I had used an earlier example of somebody who 

came on my property and destroyed my flag. The same thing. They 

could be prosecuted, could they not? 

Mr. BRYANT. As I understand the hypothetical, yes, sir. 

Senator LEAHY. Actually, the only flag-burning incidents I have 

seen in years and years have been in other countries where they 

opposed American policies, but this amendment would have no way 

of reaching them. 

We have a lot of constitutional amendments up here. The President announced his support for a constitutional amendment regarding what is usually handled in State law, and that is marriage. 

It is now the administration’s position that it supports a constitutional amendment on marriage and should not leave the issue to 

the States. 

Does the administration support the language that was introduced in the House by Representative Musgrave and in the Senate 

by Senator Allard? 

Mr. BRYANT. I don’t know that the administration has taken a 

position at this point, Senator, other than the President indicating 

20

in his statement some weeks back a number of principles that he 

would want to see embodied. 

Senator LEAHY. Is the administration going to take a position on 

the wording of any proposal? Is the administration going to take 

a position on any of the constitutional amendments before us on 

marriage? 

Mr. BRYANT. I expect the administration will be pleased to be 

working with the Congress on the text itself and would ultimately 

take a position as appropriate. 

Senator LEAHY. That is not really my question. Is there text that 

the administration now supports on the question of marriage? 

Mr. BRYANT. I am unaware that the administration is currently 

officially supporting any specific text. I do know that the administration is pleased to work with various members of Congress that 

have propounded text. 

Senator LEAHY. But they haven’t taken a position on any of the 

various proposals out there? 

Mr. BRYANT. That is my understanding, Senator. 

Senator LEAHY. Now, does the administration support having the 

States vote to amend the Constitution to encompass the language 

that is before us on flag-burning? 

Mr. BRYANT. The administration supports the text of S.J. Res. 4, 

which language would, of course, if passed by the Congress by twothirds vote of both Houses, have to go to the States and pass threequarters of the States. 

Senator LEAHY. Maybe I should break it down. The administration supports having the Congress provide the two-thirds vote to 

support the language now before us. Is that correct? 

Mr. BRYANT. Yes, sir. 

Senator LEAHY. Does the administration then support having the 

requisite number of States support it? Is that the administration’s 

position? 

Mr. BRYANT. It does. The administration presumably would be 

willing to work with the Congress, should it see fit to modify the 

text of S.J. Res. 4 in any respect such that it might then be in a 

position still to support modified language that might go to the 

States. I wouldn’t want to foreclose that possibility. 

Senator LEAHY. But currently it is the administration’s position 

that they support this language and support having the Congress 

pass it with the requisite number and then the requisite number 

of States pass it. 

Mr. BRYANT. That is my understanding. 

Senator LEAHY. They do or they don’t. 

Mr. BRYANT. I understand them to support the text of the resolution. 

Senator LEAHY. Mr. Chairman, I have other questions that I will 

introduce for the record. As I mentioned to you earlier, like so 

many Senators, I am supposed to be at three different hearings at 

once. I commend you for having this hearing. 

Again, please pass on our best wishes to the Attorney General 

and tell him we look forward to seeing him back hale and hardy 

and up here. 

Mr. BRYANT. Thank you, sir. 

21

Mr. Chairman, if I might, before Senator Leahy leaves, with respect to the question of the flags in this room that are protected 

that we have had a chance briefly to discuss, I just wanted to follow up. 

I think the policy question is, as I understand it, should the 

American flag have to borrow protection from the protected status 

of other protected items. It is the position of the proponents of this 

resolution that the American flag should benefit from an independent protected status and not simply be protected when it is on 

someone’s private property or when it has been stolen as the private property of another individual. 

Senator LEAHY. Is there anything else that has such protection 

in our Constitution, such stand-alone protection the way you described it? 

Mr. BRYANT. I think the category that strikes me as being similar, though not identical, is that of our key landmarks, our key 

monuments. The Lincoln Memorial— 

Senator LEAHY. Those are protected under very specific laws, 

laws that have been upheld constitutionally. Is there anything else 

in our Constitution that is given such unique constitutional standalone protection? 

Mr. BRYANT. Other than the flag itself until 1989, I am not sure 

of another item. 

Senator LEAHY. Thank you, Mr. Bryant, good to see you. 

Mr. BRYANT. Thank you, sir. 

Chairman HATCH. The Senator from Idaho. 

Senator CRAIG. Only to thank Mr. Bryant for being here and 

stating as clearly as he has where the administration is on this 

issue. I think he has spoken the essence of what this Committee 

needs to react to, and that is our responsibility to allow the American people to speak out on this issue. I agree with the Senator 

from California that it really is time that this country once again 

engage in these kinds of historic debates. Certainly, this would provoke one and it would be extremely valuable for our country to 

have it. 

Thank you for being here. 

Mr. BRYANT. Thank you, sir. 

Chairman HATCH. Senator Durbin. 

Senator DURBIN. Thank you, Mr. Bryant. Please add my wishes 

to those of the other members of the Committee about the Attorney 

General. I understand he has been through a pretty tough week 

and we wish him the best and hope for his speedy recovery. 

Mr. BRYANT. Thank you. 

Senator DURBIN. I want to make sure I understand the administration’s position. Two weeks ago, the President said he favored a 

constitutional amendment relative to same-sex marriage. Today, 

the testimony that you are presenting suggests that the administration supports a constitutional amendment on flag desecration. 

What other constitutional amendments is the administration 

supporting? 

Mr. BRYANT. Like administrations before it, it also supports a 

constitutional amendment in connection with victims rights. As you 

know, Senator, the support for that amendment goes back a number of administrations, as does support for this resolution before us 

22

today. Support for this resolution, which would permit Congress to 

protect the flag against physical desecration, precedes this administration. 

Senator DURBIN. Are there any other constitutional amendments 

that the administration is supporting? 

Mr. BRYANT. None that I am aware of. 

Senator DURBIN. Based on your argument that the States should 

have a chance to express their will, does the administration believe 

that the equal rights amendment should once again be submitted 

to the States for consideration? 

Mr. BRYANT. I am not aware that the administration has addressed that issue, Senator. 

Senator DURBIN. Has the administration taken a position on any 

constitutional amendment relative to Roe v. Wade or abortion? 

Mr. BRYANT. I am not sure of the administration’s discussion in 

connection with any such amendment, Senator. 

Senator DURBIN. Mr. Bryant, a lot of people raised a question 

several weeks ago when the President proposed the constitutional 

amendment on same-sex marriage as to the position of Vice President Cheney, who during the course of his debate with Senator 

Lieberman said that he thought this issue should be decided by the 

States and that Federal action, he did not believe, was necessary. 

Is that Vice President Cheney’s position today or has he changed 

his position? 

Mr. BRYANT. I could not speak to the Vice President’s position 

today, Senator. 

Senator DURBIN. Can you tell us whether Secretary of State 

Colin Powell, who opposed this amendment, has changed his position and now supports the administration’s position? 

Mr. BRYANT. Likewise, I am not in a position to know. 

Senator DURBIN. Thank you very much, Mr. Bryant. 

Mr. BRYANT. Thank you. 

Chairman HATCH. Senator Feinstein. 

Senator FEINSTEIN. Thanks very much, Mr. Chairman. 

Thank you very much for your comment, Mr. Bryant. I appreciate it. 

Mr. Chairman, I would like to submit for the record a story dated 

October 26 from the Washington Times. I don’t think anybody 

should believe that flag desecration doesn’t take place in this country. It does, and this is one such incident which took place in October when the American flag was burned on Constitution Avenue 

near 15th Street. 

So I would like to be in the record, if I might. I will assume that 

is agreeable. 

Mr. Bryant, on page 3 of your written statement you cite the language of the Flag Protection Act of 1968. You may not want to answer this, but do you believe that if the constitutional amendment 

were successful that this language could be reinstituted and would 

meet legal scrutiny? 

Mr. BRYANT. It is a good question, Senator. I wouldn’t want to 

give the definitive response today. Looking at the language of the 

1968 Act, there are a number of terms that would require a close 

evaluation. 

23

There is certainly no doubt, in our judgment, that a statute protecting the flag against physical desecration could be passed that 

would certainly withstand constitutional scrutiny. Whether or not 

the 1968 Act would, I would want to reserve judgment. 

Senator FEINSTEIN. Then my next question would be would you 

be willing to draft a statute that you believe would meet legal scrutiny that we might be able to utilize in our discussions and debate 

on this subject? 

Mr. BRYANT. We would, and were we to do that, Senator, working with the Committee, working with the Congress, an outstanding starting point would be the 1989 Act that passed with 91 

votes in the Senate. 

Senator FEINSTEIN. Could you refresh our memory? I didn’t see 

it in your comments, but perhaps you do have it in your written 

comments. Do you? 

Mr. BRYANT. Yes. 

Senator FEINSTEIN. On what page? 

Mr. BRYANT. Actually, I don’t know if it is in the written comments. I have it and could provide it to you, and it is elegant in 

its simplicity. Unfortunately, Eichman, the subsequent Supreme 

Court case, struck it down on grounds not specific so much to its 

drafting, but more in connection with the objective it was seeking 

to accomplish. But it is still on the books, Senator. It is Title 18 

of the United States Code, Section 700. So it is there even though 

it has been struck down pursuant to Eichman. Senator FEINSTEIN. Well, if you would be willing to take a look 

at that, then, and if you would recommend any improvements, I 

certainly would like to have it, and I think the Committee ought 

to have it as well. 

Mr. BRYANT. We would be pleased to. Senator, it has been pointed out to me that the text is contained in a footnote in the written 

statement. It might be footnote 8, and on the copy I have been provided it is page 3 of the statement. 

Senator FEINSTEIN. Page 3 or 6? 

Mr. BRYANT. See if there is a footnote that reads, quote, ‘‘Whoever knowingly mutilates, defaces, physically defiles, burns’’— 

Senator FEINSTEIN. Page 6. ‘‘...physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the 

United States shall be fined under this title or imprisoned for not 

more than 1 year, or both.’’ Okay, so that is essentially the latest. 

So I think it would be very useful to have you take a good look at 

that, if you would, and get back to us if you recommend any 

changes or improvements. 

Mr. BRYANT. Very good. We would be pleased to. 

Senator FEINSTEIN. I know it is a long way off, but being prepared is not a bad idea either. 

Thank you very much. 

Mr. BRYANT. Thank you. 

Senator FEINSTEIN. Thanks, Mr. Chairman. 

Chairman HATCH. Thank you, General Bryant. We appreciate 

you being here and appreciate your eloquent remarks and the answers to the questions. We will appreciate any help you can give 

on this matter. 

Mr. BRYANT. It will be a pleasure. Thank you, Mr. Chairman. 

24

Chairman HATCH. And send our best wishes to Janet and her 

husband, the Attorney General. We are pulling for him and praying 

for him, and we hope everything is okay. 

Mr. BRYANT. Thank you, sir. 

Chairman HATCH. Great to have you here. We will let you go at 

this time. 

Mr. BRYANT. Thank you. 

[The prepared statement of Mr. Bryant appears as a submission 

for the record.] 

Chairman HATCH. Let’s have the five witnesses come to the 

table. I have introduced you already. They will put the name tags 

up. We are going to start with Mr. Andretti first, since he has to 

catch a plane, and then we will go to General Brady. 

Mr. Andretti, if we could begin with you, we are so honored to 

have you here. We appreciate you taking time from what we know 

is a busy schedule, and I think it is a good thing that you are the 

first NASCAR driver to appear before the United States Senate. 

We know it is a little bit disconcerting to have to appear before the 

Senate, but we are grateful to have you here. It is not nearly as 

frightening as what you do on a day-by-day basis. 

STATEMENT OF JOHN ANDRETTI, NASCAR NEXTEL CUP 

SERIES DRIVER, MOORESVILLE, NORTH CAROLINA 

Mr. ANDRETTI. Much more frightening, believe me. 

To get started, I would like to introduce a colleague of mine, Raleigh Hemling, who is the President of the United States Auto 

Club. 

Chairman HATCH. It is great to have you with us. 

Mr. ANDRETTI. Good morning. My name is John Andretti and I 

want to thank the members of the Judiciary Committee for holding 

this hearing, and thank you also for inviting me to talk on a matter 

that is of importance to me and the great majority of Americans, 

protecting their flag from acts of physical desecration. 

By the end of World War II, my father’s family had lost everything. He and his brother grew up in a relocation camp in eastern 

Italy, living there from the time they were 8 years old until they 

were 16. They came to the United States at that point, a land of 

freedom and opportunity, and I am proud to say they made the 

most of it. 

Sometimes, he has a hard time describing it because of the emotion, but my father has told me, after seeing the flag of the United 

States first when liberated in his native Italy and later when liberated into a new life for him and his family, the flag of the United 

States represented goodness and freedom. That is a lesson he has 

taught to his children and a lesson I am teaching to mine. 

Being a father of three, it is important for me to teach my children respect and honor, not only for individuals but also on a 

whole, and the flag is a means to that end. Our faith is our foundation, but there must be more and it must be tangible and it is 

found in the flag. 

This is obviously not my environment. I am usually wearing a 

fire-retardant uniform emblazoned with the colors of my sponsors 

and talking about NASCAR racing. I am a race car driver and have 

25

driven for more than 30 years, everything from carts to Indy cars 

and NASCAR race cars. 

In fact, I hope every member of this Committee will come join 

us at a track sometime. Each one of you is very welcome. I know 

Senator Kyl and Senator Graham can tell you how great the fans 

are, and I know Senator Biden, Senator Edwards and Senator Sessions can tell you how much fun our races can be. 

And they can tell you something about my bosses, the millions 

of people who follow motor sports in this country. When all is said 

and done, every driver in major league racing works for the fans, 

and when you work for someone, you get to know them. I have 

learned a lot about those fans, as well as my fellow competitors and 

those who run the sport. I feel I am representing a huge majority 

of them here today. 

I am here because I fully believe in what General Brady and the 

Citizens Flag Alliance are about. I am very proud to be an American. Military or civilian, native or immigrant, the flag is our bond. 

I fly the flag at my home 24 hours a day. And, yes, it is lighted 

for all to see. I appreciate what the flag stands for and I know 

quite well what it means to the millions of Americans who follow 

motor sports racing. I think most of them would be surprised, if not 

outraged, to learn that today, in our country, it is legal to physically desecrate the flag of the United States. 

There are those who say the flag is only a symbol, but symbols 

are important. Just as it was a symbol of freedom to my then 8-

year-old father in Italy, and later a symbol of opportunity to him 

and his family as he entered this country for the first time, it had 

a message. 

Race officials rely on symbols on flags to communicate with drivers during noisy racing action. Even with radios today, flags are 

still important and functional in racing. In quite the same way, our 

Nation’s banner is important and functional and still sends a message. In NASCAR racing, you will see flags waved a lot, but there 

is one flag that gets waved by NASCAR fans more than any other, 

and that would be the red, white and blue of Old Glory. 

Early in our Nation’s history, the flag of the United States was 

something of a signal flag. Out in front of the troops, it signaled 

action by our military against the forces that would otherwise overrun us. It serves as a symbol of that very notion today as American 

troops defend our liberties and protect our interests around the 

world. Burning a flag, it seems to me, is a very profound signal 

that those who desecrate the flag have a total disregard for our 

military. 

In 1967, Congress passed a Federal law that prohibited flag desecration right here in the District of Columbia. Congress passed that 

law because of the effect that flag desecration had on the morale 

of the troops then fighting in Vietnam. That law, now made invalid 

by the Supreme Court, was the last show of Congressional flag-related support for America’s military men and women who are engaged in war. We should honor today’s warriors and underpin morale by once again making it illegal to physically desecrate the flag. 

I have to admit I have never seen the flag burned, other than 

on a television newscast. Those I work with and those I work for, 

NASCAR fans, aren’t the kind of folks who take to this sort of 

26

thing. Their flag is important to them. They respect it and they 

protect it. 

I once heard a man say that the flag represents the freedom to 

burn it. I would disagree, and I think most Americans would, too. 

The flag is a symbol that represents all that our Nation is can be. 

It symbolizes what the people say it symbolizes, and the great majority certainly don’t believe that includes the freedom to desecrate 

it. 

As a sign to rally for a cause, there can be no greater symbol 

than our flag. We rally around it in times of crisis, whether a natural disaster or a global conflict. Our history bears that out. The 

September 11, 2001, attack on America is a prime example of what 

Americans feel for their flag and what they know it to be as a symbol of strength, determination and resolve for a free people to remain so. 

The Citizens Flag Alliance and the American Legion have done 

a great deal of polling over the years. The figures are remarkable. 

Very consistently, they have shown that more than three of four 

Americans want their flag protected. Honestly, I am surprised the 

numbers aren’t higher. I am sure they are higher among NASCAR 

fans, who are a pretty good representation of mainstream blue-collar and white-collar America. 

Some look at the flag and just see a piece of cloth. That perception might be acceptable, but their understanding of the flag’s 

value is lacking. The bits of fabric that make up the flag are only 

cloth, but when you pull them together in that recognized pattern, 

something happens. As the flag, it becomes a binding force that 

holds us together as one people, and those who would desecrate it 

are out to break that bond. Nothing tears down America more than 

burning the flag. 

I am a businessman by profession and a race car driver by 

choice, but inside I am still something of a country boy from Bethlehem, Pennsylvania, where life is still pretty uncomplicated. To 

me, the need to protect the flag is easy to explain. 

Events of late find us reflecting on values that we believe are important and necessary in a free society. One has the right to freely 

associate—a major values battle now being fought by the Boy 

Scouts of America. Another is the right to publicly invoke the name 

of God in a patriotic exercise—another major values battle being 

wage by the American Legion in their effort to keep the words 

‘‘under God’’ in the Pledge of Allegiance to the Flag. 

As a Nation, we are bound together by our shared beliefs in such 

values, and we are bound by tradition as Americans to pass along 

to younger generations the importance of upholding those values 

that are uniquely American. 

One of the greatest tools for teaching values of respect, commitment, loyalty and patriotism is the flag of the United States. But 

how do you explain to a youngster that it is right and customary 

to respect our flag, but okay to burn it? I have three young children 

and I spend time with children all over the country because of my 

racing activities, and I have no way to explain that to them. 

What we are about today and what we are here for is important 

to all, I know, but what carries forth from here today is of greater 

importance. We are considering more than just the flag here. We 

27

are helping to assure that the flag that flies throughout the Nation 

is seen, treasured and honored everyday. You never know. It may 

give cause for a youngster to ask what the flag is for, what it 

means, or why it is important. 

The answer for most of us should be easy. That flag is about values. It is about tradition, it is about America and the men and 

women who paid an awful price for what we have today. We honor 

and cherish members of our armed forces and veterans of military 

service when we honor and protect the flag. 

Draping the flag over the coffin of a fallen soldier, placing a flag 

near a grave or hanging a flag from your house on Memorial Day 

are all ways we honor and express our appreciation for those who 

have fought and died defending America. When our laws sanction 

the physical desecration of the flag, the honor is diminished and 

the recognition is dulled. 

There is importance to the flag as a symbol and one that has a 

noble function. In racing, your helmet is your trademark, and mine 

is red, white and blue, with the American flag as a theme. My 

work clothes are colorful reflections of my sponsors who support 

me. The flag has the same function for our men and women in uniform. For them, it is a reflection of the people who support them 

in their job of protecting all of us. 

The American people deserve the backing of this body in their 

desire to protect the flag, and a constitutional amendment to return that right to the people is the only way. For those who still 

can’t see the flag for all it is, or who hold concern for amending 

the Constitution, we say keep that concern. We respect your position, but please consider the desire of a great majority and move 

the flag amendment off of Capitol Hill and send it to the States for 

debate and ratification. Let the people decide. 

Thank you. 

Chairman HATCH. Well, thank you so much, Mr. Andretti. I will 

tell you, I am a fan, but I am going to be even more of a fan after 

hearing you testify. I appreciate you taking time to be with us 

today. I know I indicated that we would try to get you out of here 

by 11:30 so you can make your plane. So we will let you go at this 

time, with our gratitude that you took the time to come here and 

testify in this important hearing. 

Mr. ANDRETTI. Well, I have, obviously, very profound feelings 

about it. I have a family that is important to me, and I am honored 

and privileged that I could come here. 

Chairman HATCH. Well, thank you so much. 

Mr. ANDRETTI. Thank you. 

Chairman HATCH. We will let you go, then. Thanks for being 

here. 

[Applause.] 

[The prepared statement of Mr. Andretti appears as a submission 

for the record.] 

Chairman HATCH. General Brady, why don’t you take the center 

seat now so that you are all together? 

We will turn to you, General Brady. We are so honored to have 

you here. You are one of the greatest heroes this country has ever 

known, and we know that you feel very deeply about this and we 

28

are going to give you a chance to express yourself on this very important amendment. 

STATEMENT OF PATRICK H. BRADY, CHAIRMAN OF THE 

BOARD, CITIZENS FLAG ALLIANCE, AND RECIPIENT, CONGRESSIONAL MEDAL OF HONOR, SUMNER, WASHINGTON 

Mr. BRADY. Thank you, sir. On behalf of the Citizens Flag Alliance, we are deeply appreciative of you allowing us to testify. 

We realize that there are good and great Americans on both 

sides of this issue, and there are some others who think it is just 

hokey; they think it is a waste of time. And it would, in fact, be 

a waste of time if all this fuss were about flag-burners or flag-burning itself. No matter how emotionally it affects most people, flagburning is a petty act, surely done to attract attention, to attack 

our country, our traditions and our patriotism, but it is a petty act 

nonetheless. 

So I want to make it clear from the beginning that our primary 

concern is not flag-burners. They are with us always. We will always have people who hate America. We agree with Colin Powell. 

But this is not about miscreants who burn the flag. Our concern 

is the Constitution and those miscreants who have amended the 

Constitution without the approval of the people by inserting flagburning in the Bill of Rights. We are concerned with others who 

would deny the people the right to decide this issue. 

The struggle for our flag has been long and fatiguing, but we are 

energized in this effort by our contract with patriotism—the oath 

that we took to protect and defend our Constitution, an oath that 

defines patriotism itself. All Americans take this same oath when 

they recite the Pledge of Allegiance, and that is the bottom line. By 

defending the right of the people to protect the flag, we are defending the Constitution. 

The Supreme Court, we believe, made a mistake by calling flagburning speech, and it is the duty of every American to correct any 

error by our Government. Flag desecration is not speech, and it 

desecrates our Constitution to say so. A review of the magnitude 

of great Americans who support this fact confirms it. 

Baseball great Tommy Lasorda, who testified here, spoke for 

common sense and for common Americans, the dictionary and three 

out of four Americans when he said ‘‘speech is when you talk.’’ Justice Hugo Black spoke for every Chief Justice of the United States 

and Justices on five Supreme Courts in the last century when he 

said, ‘‘It passes my belief that anything in the Federal Constitution 

bars...making the deliberate burning of the American flag an offense.’’ 

U.S. Representative John Murtha spoke for 70 percent of the 

Congress when he said, ‘‘Burning and desecration of the flag is not 

speech. It is an act, an act that inflicts insult, insult that strikes 

to the very core of who we are as Americans and why so many of 

us fought and died for this country.’’ 

General Norman Schwarzkopf spoke for our warriors when he 

said, ‘‘I regard legal protections for our flag as an absolute necessity and a matter of critical importance to our Nation.’’ 

We have heard from opponents of the flag amendment that our 

troops are actually fighting for the rights of flag-burners. Who 

29

among them would stand before these men and women, or my 

daughter who has just returned from Iraq, and tell them that they 

are fighting and dying in the streets of Iraq so that Americans can 

burn the flag on the street corners of America? 

You add to this mighty armada the legislatures of all 50 States 

and our President, and no reasonable person could deny that the 

Court made a mistake. By the way, James Madison, the author of 

the First Amendment, and Thomas Jefferson agreed that flag-burning was not speech. 

The Framers intended to protect political speech, and that is the 

persuading power that moves people to the ballot box and those 

elected to the will of the people. Flag-burning is the persuading 

power of the mobs. What the communist, Gregory Johnson, said 

when he burned the flag:—‘‘red, white and blue, we spit on you’’—

may not add to the political dialogue, but it is certainly protected 

by our Constitution. What he did when he burned the flag is not. 

We could go on and on about that, but I think Walter Berns in 

his book, Making Patriots, said it very well. ‘‘The First Amendment,’’ he said, ‘‘protects freedom of speech, not expression, and 

whereas all speech may be expression of a sort, not all expression 

is speech, and there is good reason why the framers of the First 

Amendment protected the one and not the other.’’ The good reason 

is not difficult to see. The Constitution cannot pick and choose between actions that are speech and those that are not. Common 

sense tells us if the Framers meant expression, protection of the 

press and assembly would have been redundant. 

But legalized flag-burning goes beyond desecration of our Constitution. It also desecrates our values as a people. Burning the flag 

is wrong, but what it teaches is worse. It teaches that the outrageous conduct of a minority is more important than the will of 

the majority. It teaches that our laws need not reflect our values, 

and it teaches disrespect for the values embedded in our Constitution which is embodied by our flag. 

Yet, despite the enormity of evidence, we believe it is important 

to address the concerns of those who are confused and those who 

disagree on this issue, and we have done this in some detail. 

First, those who say flag-burning is speech and should be protected by the Constitution, but say they want a statute to protect 

the flag. The Supreme Court has made it clear that this cannot 

happen, and it has been reinforced today. It has been tried. 

It is important to know that the flag amendment does not protect 

the flag. It simply takes control of the flag away from the judges 

and returns it to the people, where they can protect, then, if they 

choose. Those who want a flag protection law can have it simply 

by voting for the flag amendment. 

But how can those who say, as Senator Hatch has said, that flag 

desecration is speech, then support a law prohibiting flag desecration? To those who say the flag amendment would amend the Bill 

of Rights, we ask if the Supreme Court in 1989 had voted to protect the flag, would they then have amended the Bill of Rights? 

To those who have difficulty defining the American flag and express concern over prosecuting people who burn bikinis embroidered with the flag or toilet paper marked with the flag, we ask 

30

if they would put toilet paper or bikinis on the coffin of a veteran 

or on their own coffin. 

For over 200 years, we have had laws defining flag desecration 

and our courts have had no problem defining a flag. Any fifth-grader knows what the American flag is. Many people say that the flag 

is precious to them, but oppose protection. We would ask them if 

they have anything that they love that is precious to them which 

they would not protect. Is there any other precious symbol in 

America that is not protected? Pat Boone said that is like saying 

he loves his mother, but it is okay to bat her around. 

Some distrust the will of the majority, even fear a tyranny of the 

majority. They worry that the majority may exercise their will over 

a more virtuous minority. To them, we ask if the minority on the 

Court who voted to protect the flag was more virtuous than the 

majority who voted for flag-burners, or if the minority that voted 

for their opponent is more virtuous than the majority that voted for 

them. 

Some have actually said that since dictators protect their flag, 

protecting our flag aligns us with dictators. We wonder how any 

American can compare Old Glory, designed by the father or our 

country, protected according to the will of a free people—how they 

can compare that to a hammer and sickle or a swastika, protected 

according to the will of a dictator. Jefferson and Madison believed 

our flag should be protected. Does that align them with Stalin or 

Hitler? 

Some are concerned with the number of efforts to amend the 

Constitution. Why is there no concern when the courts amend the 

Constitution? They do it frequently and illegally. Why does the majority count only when it wears black robes and not when it wears 

working clothes? 

Look what the majority in courts have done with pornography, 

with prayer, the Ten Commandments, the Pledge, with the Boy 

Scouts, with marriage. There have been over 11,000 attempts to 

amend the Constitution; only 27 have succeeded. The people take 

this responsibility very seriously. 

An amendment that addresses the Bill of Rights could start a 

great debate and awaken the people as to what is being done to 

their Constitution. Once the people are aware, they will be outraged and they will act, and we have seen that outrage after the 

Super Bowl and the impact that that had on the moral midgets in 

the media. We saw the people’s outrage in California. They fired 

their government, and I think that sent a message to all people in 

government. We need to send a message to the courts. 

The flag amendment will energize the people and could help stop 

the slippery slope of constitutional desecration. The Constitution is 

too important to be left to the courts, and so is the flag. They both 

belong to the people and it is time for this body to let the people 

decide. If that flag is precious enough to cover the coffins of our 

dead warriors, it is precious enough to be protected. 

Thank you, sir. 

[The prepared statement of Mr. Brady appears as a submission 

for the record.] 

Chairman HATCH. Thank you so much, General. It was an eloquent statement. I don’t know that I have ever heard a more eloVerDate 0ct 09 2002 12:39 May 02, 2005 Jkt 020540 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20540.TXT SJUD4 PsN: CMORC
31

quent statement. I think Senator Feinstein’s statement was very 

good to hear today, as well. But I appreciate that as somebody who 

naturally is the sponsor of this amendment. 

But it is important to listen to the other side, as well, so we will 

turn to you now, Mr. Korb. We are grateful that you would take 

time from your busy schedule to be with us. We respect you and 

look forward to hearing your testimony. 

STATEMENT OF LAWRENCE J. KORB, SENIOR FELLOW, 

CENTER FOR AMERICAN PROGRESS, ALEXANDRIA, VIRGINIA 

Mr. KORB. Thank you very much, Mr. Chairman and members 

of the Committee. In the interest of time—we are running late—

I would like to submit my statement for the record and make a few 

comments here. 

Chairman HATCH. Without objection. 

Mr. KORB. I am honored to be here with some genuine heroes 

like General Brady and Professor May, and I want to first address 

six points. Number one, I can understand why people want to have 

this amendment at this time because they want to show support 

for our veterans and for the men and women in our armed services. 

But as has been pointed out earlier, if you want to do that, the 

first thing you have got to do is resist some of the very draconian 

measures that people are trying to put forward that will impact the 

veterans and our fighting men and women. 

We have already talked about what is happening with veterans’ 

medical care. I think the head of the VFW put it very well when 

he said the President’s budget, when it comes to what is happening 

to medical care for our veterans, is a disgrace and a sham. I am 

happy that Senator Craig said that will be corrected. Senator Durbin mentioned it had been voted down, but I think it is important. 

It is not just this year. If you look at the President’s budget for veterans’ medical care budget over the next 5 years, it gets worse. So 

I think it is very important to stop that. 

Second, we have got concurrent receipt. A man or woman who 

earns a military retirement, loses part of their retirement, if he or 

she has a disability. When the Congress tried to deal with this 2 

years ago, Don Rumsfeld, the Secretary of Defense, said he would 

recommend to the President to veto the bill. Fortunately, the Congress didn’t listen and did change it, but phased it in over 10 years. 

Why wait? All of the men and women over the years who have basically been short-changed—that is something you need to deal 

with. 

Number three, the administration fought the Congressional increases in hostile fire pay and family separation pay. Can you 

imagine, at a time when we are at war, they are trying to roll back 

those benefits? 

Fourth, in what the Army Times, the services’ own newspaper, 

called an active betrayal in the midst of war, they are talking 

about closing commissaries and schools on military bases. Can you 

imagine if you are transferred around or you are serving overseas 

and your child cannot go to what you know is a good school? 

Fifth, Tricare for our Guard and reserves. As we all know, when 

you change jobs, the most difficult thing that you have to deal with 

is getting a new health care plan. Well, if you are called up to acVerDate 0ct 09 2002 12:39 May 02, 2005 Jkt 020540 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20540.TXT SJUD4 PsN: CMORC
32

tive duty, as many of them have been, on 48 hours’ notice, you are 

sent overseas and your family is put into a new health care system. 

This is a tremendous problem. 

Why not allow them to join the Tricare system so that when they 

get called up, as they have with increasing frequency, they don’t 

have to change health care plans? Again, the Congress took some 

action in this area over the objections of the administration, but it 

ends this year. I would urge you to make it permanent. 

And then, finally, in order to prevent back-to-back deployments 

particularly of Army people, the unnecessary and the too-frequent 

call-up of Guard and Reserves, we need to increase the size of the 

active Army by at least 40,000 or 50,000 people. If you do those 

things, I think you will do an awful lot to address the concerns of 

a lot of the men and women here. 

Now, let me briefly turn to why I think this amendment doesn’t 

make a great deal of sense. For those of us who serve the country 

as military, civilian, political appointees, civil service appointees, 

we did not think we were defending a piece of geography. It was 

a way of life, and I think this amendment basically diminishes our 

way of life, the things that we fought for. It is bad public policy. 

I would like to associate myself with the comments of a man with 

whom I had the privilege of serving in the Reagan administration, 

now Secretary of State Powell—I think his letter said it all—and 

also with the late Senator Chafee, a person whom I had the privilege of voting for when I taught at the Navy War College in Newport, Rhode Island. It is simply bad public policy to do this. It will 

be the first time that we are passing an amendment to limit the 

freedoms given to us by the Bill of Rights. 

The second problem is the proposed amendment is vague. As has 

already been pointed out here, you could be prosecuting people 

even for political ads. 

Third, it has not been supported by several Congresses. We talk 

about the Supreme Court and how the issue has been decided in 

five-to-four decisions, Texas v. Johnson and United States v. 

Eichman. That doesn’t change what the Court does because, remember, the Court made a decision of who will be President on a 

five-to-four basis. So by saying it was a narrow majority doesn’t impact on what is the law of the land. And, sure, when you ask people, in the abstract, do you support this, they say fine. But when 

you tell them it is the first time we would have an amendment to 

limit the freedoms in the Bill of Rights, then that opinion changes. 

Then, finally, as has been pointed out here, it is not necessary. 

The number of people who would be covered under this amendment 

is not very large. And as has been pointed out several times, you 

can be prosecuted under other statutes. 

Thank you very much for listening to me. 

[The prepared statement of Mr. Korb appears as a submission for 

the record.] 

Chairman HATCH. Thank you, Mr. Korb. 

Professor May, we will turn to you. 

33

STATEMENT OF GARY E. MAY, ASSOCIATE PROFESSOR OF SOCIAL WORK, UNIVERSITY OF SOUTHERN INDIANA, EVANSVILLE, INDIANA 

Mr. MAY. Thank you. Nearly afternoon, but still good morning. 

I am extremely flattered and humbled by your invitation and interest in listening to my thoughts and those of other veterans about 

the proposed amendment to the Constitution. I gladly accepted this 

invitation as yet another opportunity for me to be of service to my 

country. 

As a Vietnam veteran who lives daily with the consequences of 

my service to my country and as the son of a World War II combat 

veteran and the grandson of a World War I combat veteran, I can 

attest to the fact that not all veterans wish to exchange fought-for 

freedoms for protecting a tangible symbol of those freedoms. 

I joined the U.S. Marines while I was still in high school in 1967. 

This was a time of broadening public dissent and demonstration 

against our involvement in Vietnam. I joined the Marines, these 

protests notwithstanding, because I felt it was my duty to do so. 

During my service with K Company, 3rd Battalion, 27th Marines, 

following the Tet offensive in Vietnam in 1968, I sustained bilateral above-the-knee amputations as a result of a land mine explosion on April 12, 1968. My military awards include the Bronze Star 

with Combat V, Purple Heart with Star, Vietnam Campaign, Vietnam Service, and National Defense medals. 

Over the past nearly 36 years, I have faced the vexing challenge 

of reconciling myself with the reality of my military history, and 

the lessons I have learned from it, and the popular portrayal of veterans as one-dimensional patriots, where death in combat is referred to as making the ultimate sacrifice, and the motivation for 

service and the definition of true patriotism is reduced to dedication to a piece of cloth. 

I ask members of this Committee to think about why they love 

our country, to find the source of their own patriotism. Has that 

patriotism been forced upon you? Have you been coerced to love 

America? Are your convictions not your own? 

A few years back, I mentioned the anniversary of my wounding 

to a colleague and asked her what she was doing those years ago. 

Somewhat reluctantly she said, ‘‘I was protesting the war in Vietnam.’’ I was not offended. After all, our Nation was born out of political dissent. Preservation of the freedom of dissent, even if it 

means using revered icons of this democracy, is what helps me understand losing my legs. 

The American flag stands for a long history of love and loss, of 

war and peace, of harmony and unrest. It also stands for the history of a nation unsatisfied with the status quo, of a nation always 

in search of a greater truth, a more perfect union. Surely, it does 

not stand for a nation where we jail those who peacefully disagree 

with us, regardless of the abhorrent nature of their disagreement. 

As offensive and painful as flag-burning is to me, I still believe 

that those dissenting voices need to be heard. This country is 

unique and special because the minority, the unpopular, the dissenters and the downtrodden also have a voice and are allowed to 

be heard in whatever way they choose to express themselves that 

does not harm others. 

34

Since 1999, the year I last testified before this Committee on this 

issue, over 2,400 veterans have written and joined my little group 

called Veterans Defending the Bill of Rights. Unlike most of the 

groups that support this amendment, we are solely organized in opposition to the amendment. Many of us are even members of the 

organizations that are listed as supporting the amendment. 

We are here to make sure that it is clear that veterans do not 

all speak with one voice on this issue. A number of these combat 

veterans would have been more than willing to testify here today. 

I have included excerpts from some of their letters in my written 

testimony, and ask that members take the opportunity to listen to 

their voices. 

In addition to my own military combat experience, I have been 

involved in veterans affairs in various capacities since 1974. I have 

yet to hear a veteran I have lived or worked with say that his or 

her service and sacrifice was in pursuit of protecting the flag. If we 

are truly serious about honoring the sacrifices of our military veterans, our efforts and attention would be better spent in understanding the full impact of military service and extending services 

to the survivors and their families. 

Our record of service to veterans of all wars is not exemplary. I 

discuss some examples of this in my written statement. The spotty 

record in veterans services is more shameful when one considers 

that the impact of military service on one’s family has gone mostly 

unnoticed by policymakers. 

Is our collective interest better served by amending the Constitution to protect a piece of cloth than by helping spouses understand 

and cope with the consequences of their loved ones’ horrible and 

still very real combat experiences? Are we turn to turn our backs 

on the needs of children whose lives have been negatively affected 

by their parents’ military service? Is our obligation to protect the 

flag greater, more righteous or more just than our obligation to 

help veterans and their families? I think not. 

Over the years, proponents of this amendment have argued that 

they are not advocating for the passage of this amendment over 

providing adequate support and services for our veterans. They say 

we can do both. I am asking when will we do both. I believe that 

it is time for Congress to pay more attention to the voices of ordinary veterans who know firsthand the implications of tyranny and 

denied freedoms. Our service is not honored by this onerous encroachment on constitutionally-guaranteed freedoms. 

Thank you very much for your patience. 

[The prepared statement of Mr. May appears as a submission for 

the record.] 

Chairman HATCH. Thank you, Professor. 

We will now turn to Professor Richard Parker, who is, of course, 

the Paul W. Williams Professor of Criminal Justice at Harvard 

Law School. We particularly appreciated your help. 

By the way, for everybody here, this amendment does not do anything other than give the Congress the power, if it so chooses, to 

prohibit flag desecration. I might also add that I presume that it 

would take 60 votes in the Senate. So it would have to be a supermajority vote even if we passed this amendment. 

35

One of the problems is that I think people are so afraid to let 

the American people do this because they know there will be overwhelming support for a statute. So my attitude is if the American 

people will do this, we ought to let them have that chance, and that 

is what this amendment is all about. This amendment doesn’t put 

anybody in jail. It doesn’t do anything but give Congress the power 

to prohibit flag desecration, if it so chooses. 

Again, I will just reemphasize that five Justices on the Supreme 

Court overturned 49 States, and I am very concerned about that 

that we have the Constitution constantly amended by five Justices. 

I would give the people a chance to go with this. 

Dr. Parker, let’s turn to you. 

STATEMENT OF RICHARD D. PARKER, WILLIAMS PROFESSOR 

OF LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS 

Mr. PARKER. Thanks very much, Mr. Chairman. I am grateful to 

you and to the Committee for inviting me to be here today. 

I have been involved in the discussion of this issue for 10 years 

now and what I will do right now is try to boil down my experience 

of the discussion into six points which it seems to me clarify what 

is at stake, and might clear up, as well, a great deal of confusion 

that has arisen in the past and to some extent today as well. 

Point number one: The flag does not represent simply one point 

of view in competition with other points of view. That was the central mistake that the majority of the Supreme Court made in Johnson and Eichman in 1989 and 1990. The flag does not stand for any 

particular policy or any administration, or for the Government, or 

even for the armed services. It transcends, and at the same time 

underlies debates among differing points of view, differing policies, 

differing contestants for governmental power. It represents, as you 

said, Mr. Chairman, the Nation, the sovereign people, the idea of 

national community in which all citizens are members. That is 

point number one. 

Number two, the flag and what it represents is a national resource of special importance to the summoning of political energy 

required for popular self-government, in general, and in particular 

it is a resource with special importance for the robustness of the 

freedom of speech. 

It is even more especially important for the robust enjoyment of 

freedom of speech on the part of minorities and dissenters. Why is 

that? If you fly the flag, if you carry the flag as a speaker, particularly a member of a minority or a dissenter, you establish your 

membership in the political community and your right to get a 

hearing from other citizens. That is why the civil rights movement, 

in which I took part, prominently displayed the American flag at 

so many of its well-known demonstrations. 

Thus, this amendment does not narrow freedom of speech, as I 

believe Senator Durbin suggested. Quite the opposite, it enhances 

the freedom of speech by strengthening its foundation. That is 

point number two. 

Number three, this National resource, like any other, should be 

protected. The fact that it is a symbolic resource makes no difference. If anything, its nature as a symbolic resource renders it 

36

more easily eroded and more in need of protection than a physical 

resource like the Grand Canyon or a particular building. 

It should be protected precisely in order to protect the foundation 

of freedom of speech as a lived experience. Those who profess great 

concern for the freedom of speech should be supporters, in other 

words, of this amendment. And that is particularly true since this 

amendment is limited to physical acts, leaving everyone free to say 

and write and signal whatever message they please at any time. 

That is point number three. 

Number four is a point that has been made by the Chairman. 

This amendment, however, does not in and of itself, as you said, 

Senator Hatch, protect the flag. It only empowers Congress to protect the flag. Thus, the arguments that come up time and again 

posing a series of hypothetical cases to ask whether they would be 

prohibited by this amendment are completely misguided. 

This is not a criminal law being written here. What is at stake 

is the authority of Congress to write a law, and as the Chairman 

pointed out, and as Senator Feinstein, too, I believe, pointed out, 

would involve a great deal of debate and adjustment and fine-tuning. It might even require 60 votes. 

Point number five: This amendment does not amend or change 

the Bill of Rights or the First Amendment. This is the most troubling red herring that is typically introduced into this debate over 

and over again. It restores the meaning of the freedom of speech 

that was taken for granted for two centuries. Those who respect 

the Constitution, those who go to the Archives, as Senator Durbin 

mentioned, with some awe with respect to the Constitution should 

be supporters of this amendment, not opponents. 

The sixth point is that there are other constitutional values and 

principles at stake here, in addition to the protection of the freedom of speech by passing this amendment. Let me mention two. 

First is the constitutional value more basic than any other to our 

Constitution and our system of Government; that is, popular sovereignty. The Constitution begins, as everyone knows, ‘‘We, the 

People.’’ If the meaning of the Constitution is delegated and if that 

delegation is taken for granted, delegated to judges, the people 

cease to govern. Popular sovereignty is undermined. ‘‘We, the People,’’ the first three words of the text, become a mockery. 

The second value is the separation of powers. It was the assumption of the Framers, as you know, that each branch would check 

the other branch in the Federal Government, especially when another branch is seeking to extend its sway in substantial ways. 

I think members of this Committee surely are familiar with what 

has happened with respect to the judiciary in the last, say, 15 

years. Compare it with the Warren Court. The Warren Court, during its first period from 1953 to 1963, and its second period from 

1963 to 1969, was a Court whose decisions, famous as they have 

been, were tethered to mainstream opinion in the country. It was 

a Court that acted in a gradualist fashion. 

In the last 15 years, that is not the way the majority of the U.S. 

Supreme Court has been behaving, or many other courts. They 

have ceased to be tethered, perhaps even to care, about mainstream opinion in the country and they have ceased to proceed in 

a gradualist fashion. 

37

So it is the responsibility of the Congress under the separation 

of powers to provide a check to the Court, and the Article V process 

is an effective, and indeed the most effective way for the Congress 

to check this new assertion of judicial power. It has been done before, most recently with the 18-year-old vote. It is especially appropriate when an amendment has the support of a substantial majority, sustained over time, when that amendment defends an established meaning of the Constitution, changed by the Justices, and 

when all the amendment does is empower Congress to pass legislation. Those four tests are all satisfied here. 

There is no more effective way by which Congress can check the 

Court. I know this Committee spends a great deal of time and energy on confirming judges, and when a new Supreme Court Justice 

is nominated, I am sure the Committee will drop everything else 

and devote itself to that. 

But it is a notorious fact that Congress cannot check the Court 

simply through the advise and consent process vis-a-vis appointments. The process of constitutional amendment, particularly so 

long as it adheres to the four conditions I mentioned, is the most 

effective way of doing so. 

This is my last point. It might occur to you, what about a check 

on majority power? Isn’t our system based on a fear of 

majoritarianism? And I ask you what institution is the most 

majoritarian institution in our Government. In what institution 

does a bare majority of one have the most sway? Not the Congress; 

certainly not the Senate, given its procedural rules; not the House. 

It is the Supreme Court that is the most majoritarian institution 

in our Government. One vote decides issues and can change the established meaning of the Constitution. Thus, we need the Congress 

to step in now and check that form of majority power. 

[The prepared statement of Mr. Parker appears as a submission 

for the record.] 

Chairman HATCH. Well, my thanks to each of you because this 

is an important issue and can’t be trivialized, no matter whether 

you are for or against it. It is a constitutional amendment and it 

is important, but a couple of things are in order, I think. 

Number one, for the veterans who have heard criticisms of this 

administration both from the dais and from witnesses, let me just 

point out the budget provides $70.4 billion in fiscal year 2005 for 

veterans programs. Now, that is an increase of $9 billion, or 15 percent. For discretionary spending alone, the budget assumes $30.5 

billion, and that is an increase of $1.3 billion, or 4.4 percent, over 

last year. In light of a freeze on most non-homeland security discretionary spending, this is a significant increase. 

The budget also proposes $29.1 billion for veterans medical care. 

It is never enough, I have to admit, and I wish we could do better. 

But that is an increase of $1.4 billion, or 5 percent, over 2004. It 

is important to note that spending for veterans medical care has 

doubled since 1993 and it has increased 42 percent since President 

Bush submitted his first budget in fiscal year 2001. That is a heck 

of a rise. 

Now, it isn’t enough, I admit, but we are constrained here by the 

fact that we don’t have an awful lot of money to spend, especially 

38

discretionary-wise. In the past three fiscal years, we have seen unprecedented increases in veterans medical care and other funding. 

In the following fiscal years, Congress has provided the following 

increases in VA’s medical budget: $1.1 billion in fiscal year 2002, 

a 5.4-percent increase; $2.4 billion in fiscal year 2003, an 11.3-percent increase; and $2.9 billion in fiscal year 2004, a 12.2-percent increase. 

These increases stand in stark contrast to requests by the Clinton administration. In fiscal years 1998 and 1999, the Clinton administration proposed that the Veterans Health Administration 

budget be cut by $83.3 million and $16.3 million, respectively. In 

fiscal year 2000, the Clinton administration proposed that veterans 

medical care funding be frozen in place. Despite those proposed reductions, Congress increased it, and I was part of that. 

Now, all I can say is that I don’t think we should use this particular hearing to try to score political points one way or the other 

on veterans care. In all honesty, I wish we could do more, and I 

am one who I believe has always voted for more. We will never be 

able to do enough, it seems to me, to pay for the care our veterans 

who have given so much for our country. 

But there is real effort to try and do what is right here and I 

don’t think the administration should be blasted when they have 

participated in these kinds of increases. It has mainly been Congress that is doing this, but the administration certainly has signed 

the bills. 

Mr. KORB. Senator, could I say something about that because I 

think this is a very critical issue? 

Chairman HATCH. Let me just say I don’t want to get into that 

here because that is not what we are discussing. But I would be 

happy to have you submit to the record anything that would help 

me to understand it better because if I am wrong on these figures, 

I would like to know, but I don’t believe I am. 

But the point is that we should do more. I wish we could do 

more. You made a good point, but to try to score political points 

on it, I think, is the wrong thing to do. There isn’t anybody in the 

Senate who doesn’t want to help veterans, not anybody. But we are 

all faced with a budget that is out of control, and one of the big 

reasons it is out of control is because of our homeland security concerns and anti-terrorism concerns. Those are big reasons. 

But there is another reason. No matter what we do, there are liberals in the United States Senate who want to spend much, much 

more, even though we can’t do it within any kind of decent budget 

restraints. Those of us who are more conservative in outlook are 

spending a lot more than we should and this is something we have 

got to get control over. 

So we can all come in and ask for more and more, which everybody does in our society. All I can say is we are in a budget battle 

right now on the floor trying to keep the budget under control, and 

we will have amendment after amendment to spend and spend and 

spend. Last year, it was over $1 trillion if we hadn’t had over 50 

points of order that stopped that. There were some heroic figures 

on the floor who had to stand there and take abuse because they 

weren’t spending enough. 

39

We will never spend enough for some of the people in this body, 

especially the liberal community. No matter what you do, they will 

always want to spend more. But I just wanted to make it clear that 

there has been a real effort to try and treat veterans fairly. 

Now, let me just say this. One of the things that really has bothered me through the years is how so many of these people have 

played politics with this issue by saying, oh, we shouldn’t amend 

the First Amendment; this will be the first time we are ever doing 

that. Well, it was the Court that did that, and I think, General 

Brady, you made a very good statement on that. 

But then they turn right around and vote for a statute to forbid 

desecration of the American flag. Well, now, why would they vote 

for a statute when they wouldn’t vote for a constitutional amendment? They did it because they know the statute isn’t going to 

make it, that the Supreme Court isn’t going to allow a statute here, 

that it is going to have to be a constitutional amendment. 

But why, if they are sincere in their fighting against constitutional amendments, would they vote for a statute against flag desecration? It seems to be me it is inconsistent, and I think anybody 

who thinks straight knows it is inconsistent. It is a phony political 

approach to try and always bring up a statute which they know 

can’t make it through the Supreme Court. 

Now, let me just ask you this, General Brady and Professor 

Parker. Some opponents of the flag amendment have stated that 

passing the amendment would make our country like the oppressive regimes in Cuba, Nazi Germany or the former Soviet Union. 

I would like you both to respond to that argument. 

Mr. BRADY. Yes, sir, I heard that and I mentioned it, I think, 

briefly in my statement. It is incomprehensible for us to hear people in America compare a protected American flag, protected according to the will of the people, to a flag that is protected according to the will of a dictator. There is a great difference. 

Our flag was designed by the father of our country, protected by 

the people. The swastika and the hammer and sickle were protected by despots, by dictators, by cold-blooded murderers. There is 

a whole lot of difference between our flag that stands for all the 

wonderful things it stands for and the Nazi flag that stands for the 

worst things of human nature. 

Chairman HATCH. Professor Parker. 

Mr. PARKER. I would, of course, agree with the General. The argument, to be blunt, is absurd. It is not even interesting, the argument to which you refer. What is interesting to me is why it is 

made so often. And not being in elective politics, I am probably not 

the best person to judge that. 

Mr. MAY. Mr. Chairman, I would like to offer a comment that 

might clarify why such statements as that sometimes get made. On 

page 13 of Mr. Brady’s written testimony, he says the will of the 

majority should define patriotism; the will of the majority should 

define patriotism. He goes on to ask, what are laws for, if not to 

force the unpatriotic to act patriotic? 

Now, to me, this smacks of sort of dictatorship, or at least an espousal of a very clear and directed set of expectations that people 

should follow. That is offered as part of his argument in support 

of the proposed amendment, and I think it is that very kind of 

40

rhetoric, and the possibility of what could result, that causes many 

of us to feel that the proposed amendment is a great departure 

from the beliefs and the values and the history of this country that 

we who fought to protect and serve. That is scary. 

I do not draw comfort from Professor Parker’s argument that we 

who might have concerns—and we all should—about freedoms that 

we enjoy under the Constitution should be rushing to support the 

amendment because it strengthens the foundation of the symbol 

that the flag represents. I think this kind of rhetoric undermines 

all of that and suggests a very heavy-handed approach to defining, 

implementing and enforcing consequences for departure from somebody’s understanding of patriotism. 

Chairman HATCH. I don’t agree with that because basically what 

the General is arguing for is for a right of Congress to decide what 

to do in this matter and to let the people decide this, not five Justices on the Supreme Court. I think there is a real, real significant 

difference. 

Now, you might take issue with some of the language, General, 

if you would care to respond. 

Mr. BRADY. Yes. You have taken that, of course, out of context, 

but I do believe that patriotism should be defined by the majority 

of the people and not the majority on a court. 

Chairman HATCH. That is a good point. 

Mr. BRADY. I do believe that patriotism is not just love of country. A patriot is someone who will support and defend a country. 

That is the definition; that is the definitive part of it. And we certainly do force patriotism when we force our people to join the services, when we force our people to ration in time of war. Many 

things that are patriotic, causing people to support and defend the 

country, are, in fact, by law, forced. 

So you would have to go through the whole thing there, Professor 

May, to get the full intent of what I am saying about patriotism. 

But the key point is that the majority must rule, the majority must 

determine what is patriotic, certainly not the majority on a court. 

Chairman HATCH. My time is just about up. 

Professor Parker, let me ask one other question of you. One of 

the most commonly used arguments against a flag amendment—

and I am getting kind of sick of it—is that the Constitution is precious and should not be amended without a great deal of thought 

and good reason. In all honesty, I am very sympathetic with that 

view, and I believe personally that the Constitution is an inspired 

document. But I get a little tired of that being a major argument 

here. 

Would you please explain why people who share my belief that 

we must protect the Constitution should support an anti-flag desecration amendment? 

Mr. PARKER. Let me mention just two reasons, first, because the 

Court—and this is not the first time it has happened—may radically turn upside down the meaning of the precious Constitution. 

Thus, to defend that Constitution requires checking the Court’s 

power. 

Secondly, one of the most precious parts of the Constitution, its 

very keystone, is Article V involving amendment. It is that article 

41

that makes operational the principle of popular sovereignty that 

we, the people, rule in this country. 

Chairman HATCH. Well, thank you. My time is up. 

Senator Durbin, we will turn to you. 

Senator DURBIN. Thank you, Mr. Chairman. Mr. Chairman, the 

reason we are holding this hearing today is because so many veterans are in Washington, and that is an important reason. And I 

don’t think it is unreasonably for Mr. Korb or others to raise veterans issues while our veterans have gathered here. 

I oppose this amendment. When I meet with my veterans, some 

of them will say, Senator, we disagree with you on that. That is 

fair. That is what our system of Government is all about. But those 

of us who have raised other veterans issues hope that our veterans 

friends won’t stop the conversation with this amendment. 

I have yet to find a single veterans group come into my office and 

say, listen, we are just doing fine in funding veterans medical care, 

we have really done a great job, thank you very much, Senator—

not a single one. Everyone comes in and says this isn’t working, 

you have got to do more, you promised you would do more when 

we promised we would put our lives on the line. So last night, when we had an amendment to put $2.7 billion 

back into veterans care and veterans hospitals, and paid for it by 

cutting the tax break for the wealthiest people in America from 

$140,000 a year to $112,000 a year so that money could go for veterans, it was defeated. 

I hope that you will take a look at the roll call, and the Senators 

who come in to talk to you about how much they love the flag 

amendment—ask them why they voted against you last night. That 

is a reasonable request. You want to put me on the spot on this 

amendment? Fine. Put them on the spot for not voting for you 

when it comes to veterans health care. That is not unreasonable, 

and I think that is what Mr. Korb is saying. 

There have been plenty of opportunities for those who say they 

love veterans and their issues to stand up for you, and time and 

time again they have not done it and they didn’t do it last night. 

And I will add one to your list, Mr. Korb. I passed the reserve 

security amendment on the floor of the Senate, which said that 

when it came to Guard and Reserve who are Federal employees, 

when they are activated—and now we know those activations are 

going for a longer and longer period of time—the Federal Government will make good on their salaries so that they won’t face a financial hardship. 

State and local governments and private businesses do that 

across America. The Federal Government does not. Ten percent of 

the Guard and Reserve are Federal employees. They are now over 

in Iraq and Afghanistan and all around the world, and many of 

them suffering serious economic hardship. It sounds like a reasonable amendment. Who could vote against that, that the Federal 

Government would stand behind activated Guard and Reserve? 

I passed it on the floor 96 to 3. Pretty good. Then it got in the 

conference Committee and, with one exception, was defeated on a 

partisan roll call. They stripped it out of the bill and that protection is not there today. Can I ask you to please add to the veterans 

agenda, Guard and Reserve who are serving who are Federal GovVerDate 0ct 09 2002 12:39 May 02, 2005 Jkt 020540 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\20540.TXT SJUD4 PsN: CMORC
42

ernment employees? I don’t think these are unreasonable issues, 

since the veterans are in town and care about the flag amendment, 

that they also care about other things. I hope they do. 

I think frankly, too, to argue that the statute and the constitutional amendment are basically the same thing is just plain wrong. 

Let me tell you, I hope that I have developed some skill at writing 

legislation. But when it gets right down to it, I think the bottom 

line is we make mistakes. We pass statutes that need to be 

changed, and that is the way it should be. We should change them 

to make them right. 

But when you put the language in the Constitution of the United 

States, it really reaches a different level. This isn’t just another 

law. It is the highest law of the land, and we ought to take care 

and make certain that we do it as the last possible resort. 

I would like maybe to ask Professor Parker or those who would 

like to comment on it—Professor, we have a statute which says 

that—and this is Title IV, Chapter 1, section 8—‘‘The flag should 

never have placed upon it, nor on any part of it, nor attached to 

it, any mark, insignia, letter, word, figure, design, picture or drawing of any nature.’’ 

Are you familiar with that, Mr. Parker? 

Mr. PARKER. Is that part of the flag code? 

Senator DURBIN. Yes. 

Mr. PARKER. It is much, much broader than the Flag Protection 

Act of 1989 that Senator Feinstein was discussing earlier. 

Senator DURBIN. It certainly is. 

Mr. PARKER. I agree with Mr. Bryant that the Act passed in the 

Senate, 91 to 9, in 1989 presents no problem. If the law you are 

describing carried with it criminal penalties, then I think there 

would be constitutional issues, although I haven’t studied the precise language. 

Senator DURBIN. Well, here is what I am trying to get to. We 

have put fairly general language in our statutes and even in this 

proposed constitutional amendment about what we are trying to 

do. Our statute said, ‘‘knowingly mutilate, deface, physically defile, 

burn, maintain on the floor or ground, or tramples upon.’’ That was 

in the statute. 

Mr. PARKER. Right. 

Senator DURBIN. Now, the words ‘‘mutilate, deface, physically defile’’ are up for some interpretation. The flag code said it would include, as I have just read, ‘‘mark, insignia, letter, word, figure, design, picture, or drawing of any nature.’’ 

Here is the point I am trying to get to. If I take a flag and I 

spray-paint on that flag ‘‘death to America,’’ have I defiled that 

flag? 

Mr. PARKER. Under the Flag Protection Act of 1989? 

Senator DURBIN. Just your opinion. 

Mr. PARKER. I think it is certainly possible, yes. 

Senator DURBIN. Now, let me ask you this question, if I might. 

If I take the spray paint and instead of putting ‘‘death to America,’’ 

I put ‘‘God bless America,’’ is that defiling the flag? 

Mr. PARKER. Sure, although, you know, as—Senator, I am sorry. 

I don’t know if you are a lawyer or not. You must be; you are on 

the Committee. 

43

Senator DURBIN. Not necessarily every member is a lawyer. I 

happen to be a recovering one. 

Mr. PARKER. So then as you know all too well, what lawyers is 

do is work with the ambiguity of words in the laws. 

Senator DURBIN. I am trying to take this to a point, and you are 

consistent. If I spray-paint ‘‘death to America,’’ it defiles the flag. 

If I spray-paint ‘‘God bless America,’’ it defiles the flag. What if I 

spray-paint my name on the flag? 

Mr. PARKER. Again, I was going to point out that in criminal law 

the intent is always important, as you know. The mens rea requirement is virtually considered essential to criminal law. So you would 

look at the intent, as we do under any criminal law. 

Senator DURBIN. But isn’t it a fact that is where the Supreme 

Court said we have got a problem here, trying to figure out what 

the intent in the mind was of the person? 

Mr. PARKER. But then the whole criminal law would be— 

Senator DURBIN. Well, let me tell you how far this goes. If you 

raise a question of whether my spray-painting my name on the 

American flag is defiling the flag, we have a photo here of the 

President of the United States signing his name to a flag. Do I 

think he defiled the flag? No, I don’t. But, by definition, now we 

have got to take this to a prosecutor. 

Do you see how, when we have to delve into the mind, how far 

you are going and what you mean as to whether we are defiling 

the flag, we start getting into questions of interpretation here? And 

my question to you and to all the panel is do you really want to 

put this in the Constitution? Do you want to use words in the Constitution that are going to lead us into all of these questions? 

There are many patriotic people that are sitting in this audience 

wearing neckties made out of American flags, some wearing sweaters with American flags. I think you are just as patriotic as the 

next person, maybe more so. But is that defiling it to use it in a 

commercial way? 

Mr. PARKER. It all would depend, as in any criminal law, on the 

intent. In the Act of 1989, the intent requirement was ‘‘knowingly.’’ 

When someone does x, y or z vis-a-vis a flag, is he or she knowingly 

mutilating it or defacing it, or does he or she do it with a radically 

different intent? That is just what law is all about. There is no 

avoiding that. 

Senator DURBIN. Well, I understand that, but the point I am trying to make to you is people think this is absolutely cut and dried; 

this is so easy. It isn’t. There are areas here which are very difficult, and that is why many of us have some reluctance to say let’s 

change the Bill of Rights, let’s put an exception in the Bill of 

Rights, and we think that we can take a roller to this Rembrandt 

and come up with a much more beautiful painting. I am not one 

of them. 

I would just say, in closing, Mr. Chairman—and I thank you for 

this—it is painful as an American sometimes to stand up for the 

rights of minorities and the right of dissent. They say things and 

do things which I despise. Sadly, that is one of the responsibilities 

of citizenship in this country to let people say things which we despise and know that they have the freedom to say them, realizing 

that we have enough strength in our values and our country to 

44

withstand any such personal assault on what we consider to be the 

values of our country. I think that is what is at stake here. 

Thank you. 

Chairman HATCH. Well, thank you, Senator. 

I just want to say to everybody here that there are lots of speeches that are outlawed by the law. This is a very important issue and 

there are two good sides to this issue. Now, I think one is far better 

than the other, no question about it, but there are legitimate arguments on both sides. 

The vast majority of the American people would like to see this 

flag amendment passed. And it is a very simple thing. It just gives 

Congress the right to do something about it, if Congress so chooses, 

and it gives the American people the right to pick who the Congress happens to be at the time. It seems to me that is pretty 

democratic. 

Naturally, as the author of the amendment, I am going to challenge you folks who want the amendment to get out there and 

work for it. We have always had over 60 votes for this amendment 

in the Senate, but we need 67. We have always lost by 2, 3 or 4 

votes. We have a basically different Senate right now than we did 

the last time we tried to pass this amendment. 

I, for one, hope that you will really get there and really work 

very, very hard and get this amendment passed. Then I think Professor May, Mr. Korb and others who are opponents, Senator Durbin and others, can do the democratically politically right thing 

that they think is right and fight against a statute that may be 

passed or may not be passed. I think that statute would go through 

the House like blazes. In the Senate, it probably would require 60 

votes. 

So it is not going to be an easy thing even if we pass this amendment. However, I think we would have the 60 votes. I think that 

is what the fear is, is that we will pass this amendment that gives 

the Congress the right, if it so chooses, to protect the flag, which 

was protected for almost 200 years before the Johnson case and the 

Eichman case and changed by the simple vote of five Justices on 

the Supreme Court. 

The fact of the matter is that the people ought to have a say on 

this, and I think one of the greatest debates that will ever occur 

will be if this amendment will pass the Senate and the House and 

be submitted to the States. Everybody in this country will be able 

to hear the persuasive arguments on both sides and make up their 

own minds. 

I am not quite sure what would happen. I believe 38 States 

would ratify this amendment within a year. But I could be wrong. 

I don’t think so, but I could be wrong. But why not give the American people a chance to say it, rather than five Justices on the Supreme Court? 

Somebody has brought up the marriage problem. Well, we had 4 

justices, 4 to 3, in Massachusetts, determining under the Full Faith 

and Credit Clause how marriage should be recognized in all 50 

States. Now, some think that we might be able to uphold and 

maintain the Defense of Marriage Act, which was adopted by at 

least 38 States—I believe 39 States. But there is a real question 

constitutionally whether that would be upheld under the Full Faith 

45

and Credit Clause. Well, the fact of the matter is that we are going 

to have to face up to that problem as to what we do about that. 

But four activist judges up on the Massachusetts Supreme Court 

are going to impose their will upon every State in the Union to recognize Massachusetts same-sex marriages, whether the people 

want to do that or not. 

These are important issues. I agree with Professor Parker that 

it shouldn’t be five Justices on the Supreme court or a split decision on the court in Massachusetts determining what everybody 

has to adhere to in every State of the Union. That ought to be battled out and there ought to be some way that the American people 

can make a decision on this themselves so that there won’t be the 

tremendous dislocation of social justice in our society that we have 

had since Roe v. Wade came down on a 7 to 2 decision, as I recall. 

Now, I don’t like judicial activism whether it is from the left or 

from the right. In fact, it is particularly reprehensible to me when 

it comes from the right because I think they ought to know better, 

but it is wrong either way. For those who argue that we are going 

to infringe on the First Amendment when, in fact, five Justices 

have set the tone for the whole country, rather than the American 

people—I think that is one of the most specious arguments I have 

ever heard. 

Well, it is an important amendment. I personally appreciate all 

of you appearing. I respect the right to disagree here, and we have 

had some eloquence on the part of those who are opposed, as well 

as eloquence on the part of those who are in favor. I am just asking 

all of you as the sponsor of the amendment to get out there. Let’s 

hustle and let’s get this done this year, and then we won’t have to 

have another one of these hearings, except for the statute. Then we 

can really have a democratic process to determine whether we can 

pass that statute. 

I would put the statement of U.S. Senator John Cornyn, from 

Texas, into the record immediately following the statement of Senator Durbin at the front of the hearing. 

With that, I want to thank you all for being here. I appreciate 

the efforts you have put in, and respect each and every one of you. 

For those who are on my side, let’s go to work. 

With that, we will adjourn until further notice. 

[Whereupon, at 12:45 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.]

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