39–006

109TH CONGRESS REPORT " HOUSE OF REPRESENTATIVES ! 1st Session 109–131

PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED 

STATES AUTHORIZING THE CONGRESS TO PROHIBIT THE PHYSICAL 

DESECRATION OF THE FLAG OF THE UNITED STATES 

JUNE 14, 2005.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL AND DISSENTING VIEWS 

[To accompany H.J. Res. 10] 

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the joint 

resolution (H.J. Res. 10) proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the 

physical desecration of the flag of the United States, having considered the same, report favorably thereon without amendment and 

recommend that the joint resolution do pass.

CONTENTS 

Page 

Purpose and Summary ............................................................................................ 2

Background and Need for the Legislation ............................................................. 2

Hearings ................................................................................................................... 7

Committee Consideration ........................................................................................ 7

Vote of the Committee ............................................................................................. 7

Committee Oversight Findings ............................................................................... 9

New Budget Authority and Tax Expenditures ...................................................... 9

Congressional Budget Office Cost Estimate .......................................................... 9

Performance Goals and Objectives ......................................................................... 10

Constitutional Authority Statement ...................................................................... 10

Section-by-Section Analysis and Discussion .......................................................... 11

Changes in Existing Law Made by the Bill, as Reported ..................................... 12

Markup Transcript .................................................................................................. 12

Additional Views ...................................................................................................... 100

Dissenting Views ..................................................................................................... 103

2

1 491 U.S. 397 (1989). 

2See Public Opinion Poll by Market Strategies, Inc. (Mar. 13, 2002) at http://www.cfa-inc.org/

issues/poll2.htm (finding seventy-five percent of Americans support such an amendment). 3Desecrating the American Flag: Key Documents of the Controversy From the Civil War to 

1995 at xix (Robert Justin Goldstein ed., 1996). 4Pub. L. No. 90–381, 82 Stat. 291 (codified as amended at 18 U.S.C. § 700 (2003)). 5 491 U.S. 397 (1989). 

PURPOSE AND SUMMARY

House Joint Resolution 10 proposes to amend the Constitution of 

the United States to empower Congress to prohibit the physical 

desecration of the American flag. The proposed resolution states: 

‘‘The Congress shall have power to prohibit the physical desecration of the flag of the United States.’’ This proposed amendment, 

by itself, does not effectively prohibit the physical desecration of 

the flag. Rather, H.J. Res. 10 gives Congress the authority to legislate in this area and sets the boundaries by which Congress can 

enact legislation, if it so chooses, to prohibit such conduct. Congress 

and the States exercised such power in the past until the United 

States Supreme Court issued a 5–4 decision in Texas v. Johnson 1

in 1989, holding that flag burning is expressive conduct that is protected by the First Amendment. Prior to the Johnson ruling, 48 

states and the Federal Government had outlawed such conduct. 

Today, all 50 states have passed resolutions calling on Congress to 

approve a constitutional amendment to protect the flag and to send 

it to the states for ratification. This proposed constitutional amendment has also engendered the consistent support of an overwhelming majority of the American public for over a decade.2 Consistent with the wishes of the American public, H.J. Res. 10 will 

empower Congress to prohibit the physical desecration of the 

American flag. 

BACKGROUND AND NEED FOR THE LEGISLATION

The flag of the United States of America is the most recognized 

symbol of freedom and democracy in the world today. It serves a 

unique role as the symbol of our country’s values and the embodiment of the rights guaranteed to all Americans under the Constitution. It has led the way into battle, has been planted on the moon, 

and has draped the coffins of Americans who have sacrificed their 

lives for our country. The flag was raised by rescue workers at the 

World Trade Center and unfurled on the Pentagon following the 

tragic attacks of September 11, 2001. The United States flag is 

more than just a piece of cloth—it is a uniquely unifying symbol 

that epitomizes this great Nation and all for which it stands. Despite this, since 1994, over 119 incidents involving flag desecration 

were reported in the States, the District of Columbia, and Puerto 

Rico. 

The movement to pass legislation prohibiting the desecration of 

the American flag began in the late 1800’s, with all of the States 

having flag desecration laws on the books by 1932.3 In 1968, the 

Federal Government passed its statute prohibiting such conduct.4

By 1989, every State in the Union except Alaska and Wyoming outlawed such conduct. However, on June 21, 1989, the United States 

Supreme Court proscribed these laws in Texas v. Johnson,5 holding 

in a 5–4 decision that the burning of an American flag as part of 

3

6Tex. Penal Code Ann. § 42.09 (1989), ‘‘Desecration of Venerated Object,’’ provided as follows:

(a) A person commits an offense if he intentionally or knowingly desecrates:

(1) a public monument;

(2) a place of worship or burial; or

(3) a state or national flag.

(b) For purposes of this section, ‘‘desecrate’’ means deface, damage, or otherwise physically 

mistreat in a way that the actor knows will seriously offend one or more persons likely to 

observe or discover his action.

(c) An offense under this section is a Class A misdemeanor. 7 Justice Stevens filed a separate dissenting opinion.

8Johnson, 491 U.S. at 429. 9 In Street v. New York, 394 U.S. 576 (1969), these three Justices set forth their views on the 

government’s regulation of acts of flag desecration. Former Chief Justice Earl Warren stated, ‘‘I believe that the States and the Federal Government do have power to protect the flag from 

acts of desecration and disgrace.’’ Id. at 605 (Warren, C.J., dissenting). In a similar tone, former 

Justice Hugo Black noted in discussing New York’s flag burning statute, ‘‘It passes my belief 

that anything in the Federal Constitution bars a State from making the deliberate burning of 

the American flag an offense.’’ Id. at 610 (Black, J., dissenting). Finally, former Justice Abe 

Fortas remarked that ‘‘the States and the Federal Government have the power to protect the 

flag from acts of desecration in public. . . . [T]he flag is a special kind of personality. Its use 

is traditionally and universally subject to special rules and regulations....’’ Id. at 615–17 

(Fortas, J., dissenting). 

a political demonstration was expressive conduct protected by the 

First Amendment to the United States Constitution. 

In Johnson, Gregory Johnson was convicted of violating a Texas 

law prohibiting the desecration of a ‘‘venerated object’’ after he 

publicly burned a stolen American flag in a protest outside of the 

1984 Republican National Convention in Dallas, Texas. The Texas 

law prohibited the intentional desecration of a national flag in a 

manner in which ‘‘the actor knows will seriously offend one or more 

persons likely to observe or discover his action.’’ 6 His conviction 

was upheld by the Court of Appeals for the Fifth District of Texas 

but reversed by the Texas Court of Criminal Appeals. The United 

States Supreme Court subsequently affirmed the holding of the 

Texas Court of Criminal Appeals, finding that the act of burning 

an American flag during a protest rally was expressive conduct entitled to protection under the First Amendment.

Chief Justice Rehnquist filed a dissenting opinion in which Justices O’Connor and White joined.7 Chief Justice Rehnquist noted 

the unique history of the American flag: 

The American flag, then, throughout more than 200 years of 

our history, has come to be the visible symbol embodying our 

Nation. It does not represent the views of any particular political party, and it does not represent any particular political 

philosophy. The flag is not simply another ‘‘idea’’ or ‘‘point of 

view’’ competing for recognition in the marketplace of ideas. 

Millions and millions of Americans regard it with an almost 

mystical reverence regardless of what sort of social, political, 

or philosophical beliefs they may have. I cannot agree that the 

First Amendment invalidates the Act of Congress, and the 

laws of 48 of the 50 States, which make criminal the public 

burning of the flag.8

Chief Justice Rehnquist also found persuasive the opinions of 

former Chief Justice Earl Warren and former Justices Hugo Black 

and Abe Fortas, which had noted that the states and the Federal 

Government had the power to protect the flag from desecration and 

disgrace.9

4

10Pub. L. No. 101–131, 103 Stat. 777. 11 ‘‘Flag Protection Act of 1989’’ H. Rep. No. 101–231, 101st Cong., 1st Sess. 2 (1989). The Act 

became law without the President’s signature on October 28, 1989. 12 496 U.S. 310 (1990). 13 Id. at 315–16. 14 Id. at 319.

In response to the Johnson decision, Congress approved the ‘‘Flag 

Protection Act of 1989’’ 10 in September 1989 by a vote of a 371–

43 in the House and 91–9 in the Senate. The Act amended the Federal flag statute, 18 U.S.C. § 700, in an attempt to make it ‘‘content-neutral’’ so that it would pass constitutional muster. As stated 

in the House Judiciary Committee report, ‘‘the amended statute focuses exclusively on the conduct of the actor, irrespective of any expressive message he or she might be intending to convey.’’ 11

On June 11, 1990, in United States v. Eichman,12 the United 

States Supreme Court, in another 5–4 decision, struck down the recently-enacted ‘‘Flag Protection Act of 1989,’’ ruling that the Act infringed on expressive conduct protected by the First Amendment. 

Although the Federal Government conceded that flag burning constituted expressive conduct, it claimed that flag burning, like obscenity or ‘‘fighting words,’’ was not fully protected by the First 

Amendment. The Federal Government also argued the Flag Protection Act was constitutional because, unlike the Texas statute 

struck down in Johnson, the Act was ‘‘content-neutral’’ and simply 

sought to protect the physical integrity of the flag rather than to 

suppress disagreeable communication. 

Justice Brennan, writing for the majority, rejected the Federal 

Government’s argument, noting that:

Although the Flag Protection Act contains no explicit contentbased limitation on the scope of prohibited conduct, it is nevertheless clear that the Government’s asserted interest is ‘‘related 

‘to the suppression of free expression,’ ’’ 491 U.S., at 410, 109 

S.Ct., at 2543, and concerned with the content of such expression. . . . [T]he mere destruction or disfigurement of a particular physical manifestation of the symbol, without more, 

does not diminish or otherwise affect the symbol itself in any 

way. . . . Rather, the Government’s desire to preserve the flag 

as a symbol for certain national ideals is implicated ‘‘only when 

a person’s treatment of the flag communicates [a] message’’ to 

others that is inconsistent with those ideals.13

Justice Stevens wrote a dissenting opinion in which Chief Justice 

Rehnquist, Justice White, and Justice O’Connor joined. He expressed agreement with the proposition expressed by the majority 

that ‘‘the Government may not prohibit the expression of an idea 

simply because society finds the idea itself offensive or disagreeable.’’14 He went on, however, to note that methods of expression 

may be prohibited under a number of circumstances and set forth 

the following standard: 

If (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker 

desires to express; (b) the prohibition does not entail any interference with the speaker’s freedom to express those ideas by 

other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expresVerDate jul 14 2003 11:31 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6601 E:\HR\OC\HR131.XXX HR131
5

15 Id. 16See U.S. Const. art. V. 17See Flag Protection Amendment: Hearing Before the Subcomm. on the Constitution of the 

House Comm. on the Judiciary, 108th Cong. (statement of Professor Richard D. Parker, Harvard 

Law School). 18 Eichman, 496 U.S. at 322. 19Johnson, 491 U.S. at 432 (Rehnquist, C.J., dissenting). 

sion is less important than the societal interest supporting the 

prohibition.15

Justice Stevens believed that the statute at issue in this case satisfied each of these concerns and thus should have been held constitutional. 

As the Johnson and Eichman decisions illustrate, a statutory 

remedy is not sufficient to correct the problem of flag desecration. 

Therefore, the only avenue remaining by which Congress can successfully defend the American flag from acts of desecration is 

through a constitutional amendment. The Framers of the Constitution understood that there would be times in our nation’s history 

necessitating a change in the Constitution and hence provided the 

people with an amendment process embodied in Article V of the 

Constitution.16 While there have been over 11,000 constitutional 

amendments proposed since the ratification of the Bill of Rights, 

there have been only 17 amendments actually approved and ratified to be included in the Constitution.17 It is this process that is 

absolutely vital to maintaining the democratic legitimacy of the 

Constitution and of judicial review itself. 

H.J. Res. 10 will effectuate the will of an overwhelming majority 

of the American public in a manner pursuant to the mechanisms 

of Article V of the Constitution and provide Congress with the 

power to prohibit the physical desecration of the flag. H.J. Res. 10 

simply seeks to remove the physical flag as a mode of communication, without regard to the content of such speech or the particular 

viewpoint attempting to be expressed. As Justice Stevens noted in 

Eichman:

It is, moreover, equally clear that the prohibition does not entail any interference with the speaker’s freedom to express his 

or her ideas by other means. It may well be true that other 

means of expression may be less effective in drawing attention 

to those ideas, but that is not itself a sufficient reason for immunizing flag burning. Presumably a gigantic fireworks display or a parade of nude models in a public park might draw 

even more attention to a controversial message, but such methods of expression are nevertheless subject to regulation.18

Alternative means of expressing ideas are available to political 

protestors who would have otherwise desecrated a flag in order to 

express their message. Implementing legislation adopted pursuant 

to a flag protection amendment prohibiting the physical desecration 

of the flag would deprive an individual of only ‘‘one rather inarticulate symbolic form of protest’’ and leave that person with ‘‘a full 

panoply of other symbols and every conceivable form of verbal expression’’ to express whatever it is that one desires to express.19

Such was the status quo in 48 states prior to the Johnson ruling 

in 1989. During this long period when flag desecration statutes 

6

20 Id. at 437 (Stevens, J., dissenting). 21 Halter v. Nebraska, 205 U.S. 34, 41–42 (1907). 22Johnson, 491 U.S. at 438–39 (Stevens, J., dissenting). 23 Eichman, 496 U.S. at 319. 24 Id. 

were in effect, wide open debate flourished, as it has throughout 

America’s history. 

The dissenting opinions in Johnson and Eichman collectively provide an instructive analysis of why Congressional action prohibiting flag desecration serves a legitimate interest. For example, 

Justice Stevens’ dissent in Johnson extolled the significant and legitimate interest in preserving the flag:

[S]anctioning the public desecration of the flag will tarnish its 

value—both for those who cherish the ideas for which it waves 

and for those who desire to don the robes of martyrdom by 

burning it. That tarnish is not justified by the trivial burden 

on free expression occasioned by requiring that an available, 

alternative mode of expression—including uttering words critical of the flag, see Street v. New York, 394 U.S. 576, 89 S.Ct. 

1354, 22 L.Ed.2d 572 (1969)—be employed.20

Former Chief Justice John Marshall Harlan echoed these sentiments over half a century earlier when he stated that ‘‘love both 

of the common country and of the State will diminish in proportion 

as respect for the flag is weakened. Therefore a State will be wanting in care for the well-being of its people if it ignores the fact that 

they regard the flag as a symbol of their country’s power and prestige, and will be impatient if any disrespect is shown towards it.’’ 21

Just as the Federal Government has a legitimate interest in preserving the quality of an important national asset, such as the Lincoln Memorial, from desecration, so too does the government have 

just as important an interest in prohibiting the desecration of the 

American flag.22

In Eichman, Justice Stevens, joined by Chief Justice Rehnquist, 

Justice White, and Justice O’Connor, began his dissent by noting 

the axiomatic First Amendment principle that ‘‘the Government 

may not prohibit the expression of an idea simply because society 

finds the idea itself offensive or disagreeable.’’ 23 However, Justice 

Stevens concluded that the Federal Government has a legitimate 

interest in protecting the intrinsic value of the American flag, because the flag, ‘‘in times of national crisis, inspires and motivates 

the average citizen to make personal sacrifices in order to achieve 

societal goals of overriding importance’’ and ‘‘at all times it serves 

as a reminder of the paramount importance of pursuing the ideas 

that characterize our society.’’ 24

H.J. Res. 10 would empower Congress to prohibit the physical 

desecration of the United States flag. The constitutional amendment itself does not prohibit flag desecration. Rather, it empowers 

Congress to enact legislation to prohibit the physical desecration of 

the American flag and establishes boundaries within which Congress may legislate to prosecute this conduct. Work on a statute 

will come at a later date, after three-fourths of the States ratify the 

amendment. 

Though a proposed flag protection amendment failed to garner a 

two-thirds majority in the House in the 101st Congress, a flag protection amendment has passed the House in every Congress since 

7

25See, http://www.cfa-inc.org/about/flag amendl.htm. 26See, e.g., Public Opinion Poll by Market Strategies, Inc. (Mar. 13, 2002) at http://www.cfainc.org/issues/poll2.htm (finding seventy-five percent of Americans support such an amendment). 27 H.J. Res. 54: Proposing an Amendment to the Constitution of the United States Authorizing 

Congress to Prohibit the Physical Desecration of the Flag of the United States: Hearing on H.J. 

Res. 54 Before the Subcomm. on the Constitution, House Comm. on the Judiciary, 105th Cong. 

(Apr. 30, 1997); Prohibit the Physical Desecration of the Flag of the United States: Hearing on 

H.J. Res. 33 Before the Subcomm. on the Constitution, House Comm. on the Judiciary, 106th 

Cong. (Mar. 23, 1999); Flag Protection Amendment: Hearing on H.J. Res. 4 Before the Subcomm. 

on the Constitution, House Comm. on the Judiciary, 108th Cong. (May 7, 2003). 28Statutory and Constitutional Responses to the Supreme Court decision in Texas v. Johnson: 

Hearings Before the Subcomm. on Civil and Constitutional Rights, House Comm. on the Judiciary, 101st Cong. (July 13, 18, 19, and 20, 1989); Hearing on Flag Desecration Before the 

Subcomm. on the Constitution, House Comm. on the Judiciary, 104th Cong. (May 24, 1995). 

the 104th. In the 105th, 106th, 107th, and 108th Congresses, language identical to H.J. Res. 10 passed the House by a two-thirds 

majority. In addition, all 50 States have passed resolutions calling 

on Congress to pass a flag protection amendment and send it to the 

States for ratification,25 and dozens of surveys since 1989 evidence 

that 75—80 percent of Americans have consistently supported 

amending the Constitution to protect the flag.26

HEARINGS

The Committee on the Judiciary held no hearings on H.J. Res. 

10 during the 109th Congress. However, hearings were held on 

identical language proposed in the 105th, 106th, and 108th Congresses.27 Five hearings were also held on statutory and constitutional responses to the Supreme Court decision in Texas v. Johnson

and the need for a flag protection amendment in the 101st and 

104th Congresses.28

COMMITTEE CONSIDERATION

On May 25, 2005, the Committee met in open session and ordered favorably reported the joint resolution, H.J. Res. 10, without 

an amendment by a recorded vote of 17 yeas to 9 nays, a quorum 

being present. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of rule XIII of the Rules of the 

House of Representatives, the Committee notes that the following 

rollcall votes occurred during the Committee’s consideration of H.J. 

Res. 10. 

1. An amendment was offered by Mr. Scott to delete the word 

‘‘desecration’’ and insert in its place the word ‘‘burning.’’ The 

amendment was defeated by a rollcall vote of 11 ayes to 19 nays.

ROLLCALL NO. 1 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte ....................................................................................................

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................

8

ROLLCALL NO. 1—Continued

Ayes Nays Present 

Mr. Inglis ........................................................................................................... X

Mr. Hostettler .................................................................................................... X

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ........................................................................................................... X

Mr. Pence ..........................................................................................................

Mr. Forbes ......................................................................................................... X

Mr. King ............................................................................................................ X

Mr. Feeney ......................................................................................................... X

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

Mr. Berman .......................................................................................................

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................ X

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................

Mr. Meehan ....................................................................................................... X

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Smith (Washington) ....................................................................................

Mr. Van Hollen .................................................................................................. X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 11 19

2. Final Passage. The motion to report favorably the joint resolution, H.J. Res. 10, was agreed to by a rollcall vote of 17 yeas to 9 

nays.

ROLLCALL NO. 2 

Ayes Nays Present 

Mr. Hyde ............................................................................................................

Mr. Coble ........................................................................................................... X

Mr. Smith (Texas) ............................................................................................. X

Mr. Gallegly ....................................................................................................... X

Mr. Goodlatte .................................................................................................... X

Mr. Chabot ........................................................................................................ X

Mr. Lungren ....................................................................................................... X

Mr. Jenkins ........................................................................................................ X

Mr. Cannon ....................................................................................................... X

Mr. Bachus ........................................................................................................ X

Mr. Inglis ........................................................................................................... X

Mr. Hostettler ....................................................................................................

Mr. Green .......................................................................................................... X

Mr. Keller ........................................................................................................... X

Mr. Issa ............................................................................................................. X

Mr. Flake ...........................................................................................................

Mr. Pence ..........................................................................................................

Mr. Forbes .........................................................................................................

Mr. King ............................................................................................................ X

Mr. Feeney .........................................................................................................

Mr. Franks ......................................................................................................... X

Mr. Gohmert ...................................................................................................... X

Mr. Conyers ....................................................................................................... X

9

ROLLCALL NO. 2—Continued

Ayes Nays Present 

Mr. Berman .......................................................................................................

Mr. Boucher .......................................................................................................

Mr. Nadler ......................................................................................................... X

Mr. Scott ........................................................................................................... X

Mr. Watt ............................................................................................................

Ms. Lofgren ....................................................................................................... X

Ms. Jackson Lee ................................................................................................ X

Ms. Waters ........................................................................................................

Mr. Meehan .......................................................................................................

Mr. Delahunt .....................................................................................................

Mr. Wexler .........................................................................................................

Mr. Weiner ......................................................................................................... X

Mr. Schiff .......................................................................................................... X

Ms. Sa ́nchez ...................................................................................................... X

Mr. Smith (Washington) ....................................................................................

Mr. Van Hollen .................................................................................................. X

Mr. Sensenbrenner, Chairman .......................................................................... X

Total ................................................................................................ 17 9

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new 

budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the resolution, H.J.Res. 10, the following estimate and comparison 

prepared by the Director of the Congressional Budget Office under 

section 402 of the Congressional Budget Act of 1974:

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, May 31, 2005. 

Hon. F. JAMES SENSENBRENNER, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.J. Res. 10, proposing an 

amendment to the Constitution of the United States authorizing 

the Congress to prohibit the physical desecration of the flag of the 

United States. 

10

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contacts are Mark Grabowicz (for 

Federal costs), and Melissa Merrell (for the State and local impact). 

Sincerely, 

DOUGLAS HOLTZ-EAKIN.

Enclosure. 

H.J. Res. 10—Proposing an amendment to the Constitution of the 

United States authorizing the Congress to prohibit the physical 

desecration of the flag of the United States. 

H.J. Res. 10 would propose an amendment to the Constitution to 

allow the Congress to enact legislation that would prohibit physical 

desecration of the U.S. flag. The legislatures of three-fourths of the 

States would be required to ratify the proposed amendment within 

7 years for the amendment to become effective. By itself, this resolution would have no impact on the Federal budget. If the proposed 

amendment to the Constitution is approved by the States, then any 

future legislation prohibiting flag desecration could impose additional costs on U.S. law enforcement agencies and the court system 

to the extent that cases involving desecration of the flag are pursued and prosecuted. However, CBO estimates that any resulting 

costs would not be significant. H.J. Res. 10 would not affect direct 

spending or revenues. 

H.J. Res. 10 contains no intergovernmental or private-sector 

mandates as defined in the Unfunded Mandates Reform Act and 

would impose no costs on State, local, or tribal governments. For 

the amendment to become part of the Constitution, three-fourths of 

the State legislatures would have to ratify the resolution, but no 

State would be required to take action on the resolution, either to 

reject it or approve it. 

The CBO staff contacts for this estimate are Mark Grabowicz (for 

Federal costs), and Melissa Merrell (for the State and local impact). 

This estimate was approved by Robert A. Sunshine, Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

The Committee states that pursuant to clause 3(c)(4) of rule XIII 

of the Rules of the House of Representatives, H.J. Res. 10 would 

amend the Constitution to provide that Congress has the power to 

prohibit the physical desecration of the flag. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article V of the Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

The following discussion describes the bill as reported by the 

Committee. H.J. Res. 10 states: ‘‘The Congress shall have power to 

prohibit the physical desecration of the flag of the Unites States.’’

As interpreted by the Supreme Court, the First Amendment to the 

United States Constitution, which states that, ‘‘Congress shall 

make no law . . . abridging freedom of speech,’’ limits the power 

11

29 4 U.S.C. § 1. ‘‘On the admission of a new State into the Union one star shall be added to 

the union of the flag; and such addition shall take effect on the fourth day of July then next 

succeeding such admission.’’ 4 U.S.C. § 2. 

of Congress to prohibit the physical desecration of the flag. In light 

of the Supreme Court’s interpretation, a constitutional amendment 

is the only alternative for proscribing the physical desecration of 

the flag. H.J. Res. 10 would empower Congress to pass legislation 

to prohibit the physical desecration of the flag of the United States. 

This proposed constitutional amendment sets the parameters for 

future action by the Congress on this issue. After the amendment 

is ratified, the elected representatives of the people can decide 

whether to enact legislation prohibiting the physical desecration of 

the flag. Two key issues will need to be considered in enacting legislation to protect the flag from physical desecration. First, Congress must consider the meaning of ‘‘physical desecration.’’ The 

amendment itself requires physical contact with the flag. Under 

this amendment, Congress could not punish mere words or gestures directed at the flag, regardless of how offensive they were. 

Webster’s Ninth New Collegiate Dictionary defines ‘‘desecrate’’ as 

follows: ‘‘1: to violate the sanctity of: PROFANE 2: to treat irreverently or contemptuously often in a way that provokes outrage on 

the part of others.’’ Black’s Law Dictionary defines ‘‘desecrate’’ as 

‘‘[t]o divest (a thing) of its sacred character; to defile or profane (a 

sacred thing)’’ and ‘‘flag desecration’’ as ‘‘the act of mutilating, defacing, burning, or flagrantly misusing a flag.’’ Congress, under this 

constitutional amendment, could clearly prohibit burning, shredding, and similar defilement of the flag. 

In any event, the word ‘‘desecration’’ was selected because of its 

broad nature in encompassing many actions against the flag. Such 

broad terms are commonly used in constitutional amendments; for 

example, ‘‘free exercise’’ in the First Amendment; ‘‘unreasonable 

searches and seizures’’ and ‘‘probable cause’’ in the Fourth Amendment; ‘‘due process’’ and ‘‘equal protection’’ in the Fourteenth 

Amendment. The use of broad terms in constitutional amendments, 

such as the word ‘‘desecration,’’ are necessary to give Congress discretion when it moves to enact implementing legislation. Debate 

and discussion as to what forms of desecration should be outlawed, 

such as burning, will come at a later date in Congress. Otherwise, 

Congress would be restricted and unduly limited in achieving its 

objective and purpose in approving a constitutional amendment 

such as H.J. Res. 10. 

Second, Congress will have to decide what representations of the 

flag of the United States are to be protected. As defined in the 

United States Code, ‘‘[t]he flag of the United States shall be thirteen horizontal stripes, alternate red and white; and the union of 

the flag shall be forty-eight stars, white in a blue field.’’ 29 The resolution does not affect this definition. In enacting a statute, Congress will need to decide which representations of the flag are to 

be protected from physical desecration. For instance, the flag of the 

United States may be defined in this future authorizing statute as 

only a cloth, or other material readily capable of being waved or 

flown, with the characteristics of the official flag of the United 

States as described in 4 U.S.C. § 1. These details will be dealt with 

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in implementing legislation subsequent to the adoption and ratification of H.J. Res. 10. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of Rule XIII of the Rules of the 

House of Representatives, the Committee notes H.J. Res. 10 makes 

no changes to existing statutes.

MARKUP TRANSCRIPT

BUSINESS MEETING 

WEDNESDAY, MAY 25, 2005

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to notice, at 10:02 a.m., in Room 

2138, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr. [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will come to order. A 

working quorum is present. 

[Intervening business.] 

Chairman SENSENBRENNER. Pursuant to notice, I now call up 

H.J. Res. 10 proposing an amendment to the Constitution authorizing Congress to prohibit the physical desecration of the flag of the 

United States for purposes of markup and move its favorable recommendation to the House. Without objection, the joint resolution 

will be considered as read and open for amendment at any point. 

[The resolution, H.J. Res. 10, follows:]

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Chairman SENSENBRENNER. The chair recognizes the gentleman 

from Ohio, Mr. Chabot, the Chairman of the Subcommittee on the 

Constitution, for 5 minutes to explain the joint resolution. 

Mr. CHABOT. Thank you, Mr. Chairman. 

The flag of the United States is the most recognized and sacred 

symbol of freedom and democracy in the world. Whether in war 

atop the United States Capitol or sewn to the sleeves of our brave 

men and women sent into battle, the flag represents the values 

that all Americans hold dear. In the midst of the rubble and debris 

at Ground Zero, where the World Trade Center towers once stood, 

three New York City firefighters raised the flag to the top of the 

pole. The photographer who captured this shot said, ‘‘This was an 

important shot. It told of more than just death and destruction, it 

said something to me about the strength of the American people 

and of these firemen having to battle the unimaginable. It had 

drama, spirit, and courage in the face of disaster.’’

It is this symbolism and resilience that has made the flag the 

most beloved and cherished symbol in our Nation’s history. Despite 

this, 119 incidents of flag desecration have been reported since 

1994. The movement to pass legislation prohibiting the desecration 

of the American flag began in the late 1800’s, with every State having a flag desecration law on the books by 1932. In 1968, the Federal Government passed its statute prohibiting such conduct. By 

1989, every State in the Union except Alaska and Wyoming outlawed such conduct. 

However, in 1989, the United States Supreme Court, by the narrowest of margins, effectively invalidated all State and Federal 

laws that prohibited flag desecration. In a 5–4 opinion, the Court 

concluded that the burning of the American flag as part of a political demonstration was expressive conduct protected by the first 

amendment. Congress responded to the Supreme Court’s decision 

almost instantaneously through bipartisan and overwhelming support, enacting the Flag Protection Act of 1989, which passed the 

House by a vote of 371 to 43 and the Senate by a vote of 91 to 9. 

However, in a 5–4 opinion the following year, the Supreme Court 

held the Flag Protection Act unconstitutional in United States v. 

Eichman. Because of these narrowly decided Supreme Court decisions, a constitutional amendment provides the only remaining option for the American public to restore protection to our Nation’s 

most visible symbol. The Flag Protection Amendment would restore 

the authority of Congress to prohibit the physical desecration of the 

flag. 

Some would argue that this proposed amendment would erode 

the first amendment protections that all Americans enjoy. I disagree with this assertion as do the majority of Americans. The Flag 

Protection Amendment is consistent with the first amendment 

while maintaining the flag as a national symbol and giving it the 

protection it deserves. The first amendment does not grant individuals unlimited rights to engage in any form of desired conduct 

under the cloak of free expression. For instance, burning a $10 bill 

and pushing over a tombstone are actions which can be utilized to 

express a particular political or social message, but are unquestionably illegal. In addition, the amendment proposed today does not 

contain any language that will prevent individuals from speaking 

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out against the United States, its policies, its people, its flag, or 

anything that these things represent. 

This amendment simply prohibits acts of physical desecration of 

the Nation’s most enduring and revered symbol, nothing more. The 

House of Representatives has passed the Flag Protection Amendment by more than the two-thirds majority vote needed in five separate Congresses; in four of these Congresses language identical to 

H.J. Res. 10 that we are considering today passed the House. 

Though a flag protection amendment received majority support 

in the Senate on two separate occasions, it failed both times to garner the two-thirds majority by four votes. 

All 50 States have passed resolutions calling on Congress to pass 

and send a flag protection amendment to the States for ratification, 

and 75 to 80 percent of Americans have consistently supported 

amending the Constitution to protect the flag. 

Such overwhelming support by the American people sends a 

clear message to Congress that we must adhere to the wishes of 

the people and adopt this proposed amendment to the Constitution. 

I yield back the balance of my time. 

Mr. CONYERS. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. Mr. Chairman, I rise in opposition to this measure 

before us. Because it’s always tempting for Congress to show the 

Supreme Court in particular who’s boss, and it has attempted to 

do so since 1989. We have two Supreme Court cases on this very 

same point. It was a concern about the tyranny of the majority that 

led the framers of the Constitution to create an independent judiciary free of political pressure to ensure the Legislative and Executive branches would honor the Bill of Rights. A constitutional 

amendment banning flag desecration really flies in the face of this 

very carefully balanced structure. 

Now, the consideration of this measure today will show whether 

the Members of this Committee, the Judiciary Committee, have the 

strength to remain true to our forefathers’ constitutional ideals and 

defend our citizens’ right to express themselves even when we vehemently disagree with their method of expression. I deplore the 

desecration of the flag in any form. But I strongly oppose this resolution because it goes against the very ideals on which the country 

has been founded. 

If we allow H.J. Res. 10 to go to the floor and be adopted, this 

will be the first time in the history of this country that the people’s 

representatives voted to alter the Bill of Rights to limit freedom of 

speech. It’s been said that the true test of any Nation’s commitment to freedom of expression lies in its ability to protect unpopular expression, and that is the basis of my objection to this measure 

before us. 

As Oliver Wendell Holmes said, ‘‘the Constitution protects not 

only freedom for the thought and expression we agree with, but 

freedom for the thought that we hate.’’ And so by limiting the scope 

of the first amendment’s free speech protections, I see us setting 

a most dangerous precedent. If we open the door to criminalizing 

constitutionally protected expression related to the flag, I predict it 

will be difficult to limit further efforts to censure speech. And once 

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we decide to limit freedom of speech, limitations on freedom of the 

press and freedom of religion, I fear, may not be far behind. 

So join with me in rejecting H.J. Res. 10. 

And I would return any time not used, Mr. Chairman. 

Chairman SENSENBRENNER. Without objection, all Members’

opening statements will be included in the record at this point. 

Are there amendments? 

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from New York. 

Mr. NADLER. I move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Thank you, Mr. Chairman. 

Today we endure the Republican rite of spring—a proposed 

amendment to the Bill of Rights to restrict what it calls flag desecration. 

Why spring? Because the calendar tells us that Memorial Day 

will soon be upon us. June 14 is Flag Day. And then we have July 

4. Members need to send out a press release extolling the need to 

protect the flag as if the flag somehow needed Congress to protect 

it. 

The flag is a symbol of our great Nation and the fundamental 

freedoms that have made this Nation great. If the flag needs protection at all, it is from Members of Congress and super-patriots 

who value the symbol more than they value the freedoms the flag 

represents. Quite frankly, the crass political use of the flag to question the patriotism of those who value our fundamental freedoms 

is a greater insult to those who died in the service of our Nation 

than is the burning of the flag. 

I am certain that we will hear speeches and probably 30-second 

attack ads invoking the sacrifice of our troops in the field, invoking 

the destruction of the World Trade Center as a pretext for carving 

up the protection of free speech embodied in the first amendment 

and in the decisions of the United States Supreme Court. That is 

a shameful exploitation of the patriotism and courage of those fine 

and courageous people who died in the service of our country. It is 

the civic equivalent of taking the Lord’s name in vain. 

You want to honor the sacrifice of our troops? Protect the rights 

they fight for. Protect the rights of veterans. Don’t let the Administration send our troops into harm’s way without body armor or 

Humvee armor or the equipment they need to survive. Playing 

games with the Constitution does not honor them. 

People have rights in this country that supersede public opinion, 

even strongly held public opinion. If we do not preserve those 

rights, then the flag will have been desecrated far beyond the capability of any individual with a cigarette lighter. 

Let there be no doubt that this amendment is aimed at persecuting ideas. Current Federal law says that the preferred way to 

dispose of a tattered flag is to burn it. But there are those who 

would criminalize the same act of burning the flag if it is done to 

express political dissent. The same act would be a crime under this 

amendment if done for purposes of saying I disagree with whatever-I-disagree-with, as opposed to for some other reason. The 

same act. So what’s really being criminalized is not the act, but the 

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expression of the idea. That’s why the Supreme Court found it unconstitutional. 

Current Federal law, which is constitutionally void, makes it a 

misdemeanor to use the flag for advertising or on packaging. How 

many Members of Congress, used car dealers, attendees at the Republican National Convention the last few times, fast food restaurants and other seemingly legitimate individuals and enterprises have engaged in this act, have used the flag for advertising 

or on packaging, have put them on slippers and clothes—an act 

which our laws define as flag desecration? This amendment would 

presumably make that law constitutional once more. If ratified, I 

think there are more than a few people who will have to redesign 

their campaign materials to stay out of the pokey. 

As if this assault on the Bill of Rights is not enough, this Committee didn’t even bother holding—— And let me say one other thing. We all see many times movies. 

In these movies we see actors dressed up as Nazi soldiers burning 

or trampling the flag. Do we arrest the actors? No, we don’t’ arrest 

the actors because we don’t care about the act of burning the flag 

because we know they’re not burning the flag to express a sentiment of dissent. They’re burning the flag as play-acting. So it’s the 

idea behind the burning of the flag that we seek to criminalize 

here. We’re not going to arrest the actors because we don’t care 

about the ideas they’re expressing. And ideas are protected and 

ought to remain protected by the first amendment. 

As if this assault on the Bill of Rights is not enough, this Committee didn’t even bother holding a hearing on this constitutional 

amendment. The Subcommittee on the Constitution did not bother 

to hold a markup or to vote on it. This cavalier attitude toward the 

Bill of Rights is offensive and revealing: Why discuss it? Why look 

into it? It’s only the Constitution. We’re only talking about the 

rights of a few malcontents for whom even opponents of this 

amendment, many, have contempt. So who cares? 

But we ought to care. This is our freedom of speech that is under 

assault here. People have died for this Nation and for the rights 

which this flag so proudly represents. Let us not do anything to diminish the freedoms, to diminish the way of life for which they 

made the ultimate sacrifice. That’s what this constitutional amendment does—it limits the expression of ideas in the guise of flag 

desecration. 

And to protect against what threat? How many—do we see an 

epidemic of flag desecrations? When was the last time we saw 

someone burn a flag? Maybe during the Vietnam War. Maybe once 

or twice in 1991 or a couple of years ago. What are we doing here? 

We have no huge threat to protect against, but we do threaten our 

free speech and the Bill of Rights. That’s not what makes sense. 

I urge us not to pass this bill, and I thank you. 

Chairman SENSENBRENNER. Are there amendments? 

The gentleman from Virginia, Mr. Scott? 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.J. Res. 10, offered by Mr. Scott. 

Page 2, line 9, strike ‘‘desecration’’ and insert ‘‘burning.’’

[The amendment of Mr. Scott follows:]

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Chairman SENSENBRENNER. The gentleman from Virginia is recognized for 5 minutes. 

Mr. SCOTT. Mr. Chairman, my amendment would change the 

constitutional amendment to prohibit all flag burning. If we’re 

going to mark up this bill without any hearings or Subcommittee 

deliberation, we should at least acknowledge the whole purpose of 

the underlying constitutional amendment is to stifle political expression that we find offensive. While I personally agree that we 

should respect the flag, I do not think it’s appropriate to use the 

criminal code to enforce our views on those who disagree with us. 

The Supreme Court has considered the restrictions on the Bill of 

Rights that are permissible by the Government. For example, 

under the first amendment, with respect to speech, time, place, and 

manner may generally be regulated while content may not. There 

are, of course, exceptions. Speech that creates an imminent threat 

of violence or threatens safety or patently offensive expressions 

with no redeeming social value, those may be restricted. But generally you cannot restrict content. The distinction is that you can 

restrict time, place, and manner, but not content. 

So you can restrict the time, place, and manner of a protest or 

demonstration, what time it is held, where it’s held, but you cannot 

restrict what people are marching or demonstrating about. You 

cannot ban a particular march or demonstration just because you 

disagree with the message, unless you decide to ban all marches. 

You cannot allow marches by the Republican Party but not the 

Democratic Party, and you cannot allow pro-war rallies but not 

anti-war rallies. 

Some have referred to the underlying resolution as the anti-flag 

burning amendment and they speak about the necessity of this 

amendment to keep people from burning flags. But really, the only 

place you ever see a flag burned is in compliance with the Federal 

Code at flag ceremonies disposing of a worn-out flag. Ask any Boy 

Scout or member of the American Legion how to dispose of a wornout flag and they’ll tell you that you burn the flag at a respectful 

ceremony. 

This proposed constitutional amendment is all about expression 

and all about prohibiting expression in violation of the spirit of the 

first amendment. By using the word ‘‘desecration,’’ we are giving 

the Government officials power to decide that one can burn the flag 

if you’re saying something nice and respectful, but you are a criminal if you burn the flag while saying something that insults the 


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local sheriff. This is an absurd distinction and is in direct contravention with the whole purpose of the first amendment. 

Mr. Chairman, in addition to the violation of the spirit of the Bill 

of Rights, this amendment has practical problems, too. For example, what is a flag; can you desecrate a picture of the flag; can a 

flag with the wrong number of stripes or stars be desecrated? During the Vietnam War laws were passed prohibiting draft cards from 

being burned and protestors, with great flourish, would say that 

they’re burning a draft card, and offend everybody, but then nobody would know whether it was actually a draft card or just a 

piece of paper. And what happens if you desecrate your own flag 

in private? Are you subject to the criminal prosecution if somebody 

finds out? 

And Mr. Chairman, I feel compelled to comment on the suggestions that stealing and destroying somebody’s personal property is 

protected if the personal property happens to be a flag. The law is 

clear. It is theft and destruction of personal people whether it is 

a flag or not. And if the burning is done in such a manner as to 

provoke a riot or breach of the peace, that would be a crime. Provoking riots and provoking breaches of the peace is a crime whether the flag is involved or not. 

This legislation is aimed at criminalizing political speech, and we 

should not politicize speech you disagree with just because you 

have the votes. 

In order to make this amendment consistent with the ideals of 

the first amendment’s prohibition against limiting freedom of expression, I am proposing that we just ban all flag burning. My 

amendment has no content-based restrictions. It makes the underlying amendment content-neutral. All flag burning would be outlawed. The underlying resolution permits flag burning when you’re 

saying something nice while you’re burning the flag, but would 

criminalize burning the flag while you’re saying something bad. If 

we really intend to ban flag burning, then let’s ban flag burning, 

consistent with the ideals of the first amendment. What this 

amendment does is to take the content out of it. 

And so, Mr. Chairman, I would ask unanimous consent to introduce for the record letters from several veterans groups, civil rights 

groups, legal organizations, as well as several individuals opposing 

this legislation. I ask unanimous consent for these letters to be entered into the record. 

Chairman SENSENBRENNER. Without objection. 

[The information follows:]

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Mr. SCOTT. I urge my colleagues to support the amendment. 

I yield back. 

Chairman SENSENBRENNER. The gentleman from Ohio, Mr. 

Chabot. 

Mr. CHABOT. Move to strike the last word, Mr. Chairman. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. CHABOT. Thank you. I rise in opposition to the amendment. 

I would first note that there has been some criticism raised by the 

other side that we didn’t have a hearing this Congress. I would 

note that we had hearings in the Subcommittee on the Constitution 

in the 105th Congress, the 106th Congress, the 108th Congress, 

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were saying here we go again, we’re having another hearing on 

this. And had we had a hearing on it this time, we would have had 

that same complaint. So one cannot win in this particular instance. 

Mr. NADLER. Would the gentleman yield? 

Mr. CHABOT. I’d be happy to yield. 

Mr. NADLER. It is true. You would have that complaint. We’d say 

it’s unnecessary because it’s an unnecessary and silly bill, but we 

still—but as little as I like to waste my time on such hearings, the 

fact is on a matter of such import we should have hearings. 

Mr. CHABOT. Reclaiming my time. But, you know, you’re damned 

if you do and you’re damned if you don’t. So we didn’t this time, 

and got the criticism. And we appreciate the gentlemen’s criticism, 

but I think they’re inaccurate in their arguments. 

Now, relative to this particular amendment and why it should be 

rejected, it should be rejected because, while prohibiting flag burning, the proposed amendment would still allow other types of defilement and defacement of the American flag. The word ‘‘desecration’’ was selected in order to assure that the flag would be protected from physical acts other than just burning. Black’s Law Dictionary defines ‘‘flag desecration’’ as ‘‘the act of mutilating, defacing, burning, or flagrantly misusing a flag;’’ and ‘‘desecrate’’ as to ‘‘divest a thing of its sacred character; to defile or profane a sacred 

thing.’’ And I would argue that our flag is a sacred thing. In contrast, ‘‘burning’’ means simply ‘‘affecting with or as if with heat,’’ as defined in the Merriam-Webster Dictionary. 

Limiting the amendment to only the burning of the flag rather 

than desecration would unduly limit the object and purpose of this 

resolution to give Congress the power to protect the flag from a 

range of physical acts of defilement or defacement. The word ‘‘desecration’’ was selected because of its broad nature in encompassing 

many actions against the flag. Such broad terms are commonly 

used in constitutional amendments. For example, ‘‘free exercise’’ in 

the first amendment. ‘‘Unreasonable searches and seizures’’ and ‘‘probable cause’’ in the fourth amendment. ‘‘Due process’’ and 

‘‘equal protection’’ in the fourteenth amendment. 

Thus, it’s essential that we continue to use broad terms in constitutional amendment such as the word ‘‘desecration,’’ in order to 

give Congress discretion when it moves to enact implementing legislation. Debate and discussion as to what forms of desecration 

should be outlawed, such as burning, will come at a later date in 

Congress. 

Again, this particular resolution gives us the ability, it gives Congress the ability to get more specific in legislation later on. Right 

now, we don’t have that right. The Supreme Court on two separate 

occasions has struck that down. They’ve given us no alternative. If 

you want to protect the flag, then you vote for this. If you don’t 

care, then you vote the other way. 

Mr. SCOTT. Will the gentleman yield? 

Mr. CHABOT. I’ll yield. 

Mr. SCOTT. I would want to agree with you that the word ‘‘desecration’’ is a subjective term. But the point of this amendment is 

it takes the content and attitude out of it. Because if you burn the 

flag and say something nice, that would not be desecration. But if 

you burn the flag while you’re saying something insulting, that 

would be desecration. The point of this amendment is to take the 

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content and attitude out of it. And if you’re going to criminalize the 

act, criminalize the act—something objective and not depending on 

whether someone is insulted by the speech and message or not. 

Mr. CHABOT. Reclaiming my time. I’ve been to a number of these 

ceremonies. I’m sure that many of the other gentlemen and 

gentleladies have been as well, when they have a helmet and 

they’re putting in people that have died during the course of that 

year. There are many instances in which the ceremonies occur and 

it’s clear—I mean, we’re talking about defacement, defilement, 

desecration, and burning can be one of those things. We would get 

into the details of this later on. We’ve got to get past the other 

body’s vote against this, though. We’ve had the votes here in the 

House; the problem has been over in the other body. 

I yield back the balance of my time. 

Mr. NADLER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Nadler. 

Mr. NADLER. Mr. Chairman, the gentleman from Ohio is quite 

correct. The word ‘‘desecration’’ is a broad term. He gave a number 

of definitions, including I think he said, ‘‘profane,’’ ‘‘defame.’’ These 

are terms derived, as is the word ‘‘desecration,’’ from a religious 

context. And it’s used in that context. He also said that ‘‘we’re defining it broadly; the Constitution defines ‘due process’ broadly,’’ et 

cetera. Quite correct. We define rights broadly. No one should be 

put in jail without due process; no one shall be deprived of freedom 

of speech without due process of law, et cetera. We define rights 

broadly. 

We define crimes narrowly, because we don’t want to overly restrict people’s freedoms. One of the problems with this amendment—one of the problems—is that what does ‘‘desecration’’ mean? 

It means almost anything. And you give Congress the power to define it as almost anything. And not just physical. Under this 

amendment, Congress will clearly have the power, as you put it a 

moment ago, ‘‘desecration’’ means defamation, profanation, blasphemy generally, in religious terms. If someone said something not 

nice about the flag, you could make that criminal—without any 

physical act. There’s nothing that says ‘‘physical’’ in here. You 

could say that anyone who defames the actions of the country 

might be read to be defaming the flag and therefore desecrating the 

flag. I can see a court holding that. I can see some congressmen 

voting for that. And that’s one of the problems. 

I would suggest that—and I’m going to offer an amendment in 

a moment, as soon as we draft it, that we add——

It says ‘‘physical.’’ I’m sorry. I withdraw that. Never mind what 

I said about—but ‘‘physical desecration’’ still means any of the acts 

which, if done with ideas that people do not find objectionable, is 

not considered desecration. And that is the crux of the problem 

here. Any physical act which you can think of doing with a flag you 

would not criminalize if done without objectionable connecting 

ideas—objectionable to the authorities, that is. And that’s the basic 

problem here, and that’s why it’s a gross violation of freedom of 

speech. That’s why the Supreme Court struck it down and that’s 

why we shouldn’t amend the Constitution. 

Chairman SENSENBRENNER. Does the gentleman yield back? 

Mr. NADLER. Yes, I yield back. 

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Chairman SENSENBRENNER. The question is on the amendment. 

Mr. CONYERS. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Michigan. 

Mr. CONYERS. I have a motion at the desk. 

Chairman SENSENBRENNER. The clerk will report the motion. 

Mr. CHABOT. Mr. Chairman, reserving the right to object. 

Chairman SENSENBRENNER. The clerk will report the motion 

first. 

The CLERK. Motion to postpone to a date certain by Mr. Conyers: 

I move that the consideration of H.J. Res. 10 be postponed until 

June 15, 2005. 

Chairman SENSENBRENNER. The motion is non-debatable. The 

question is agreeing to the motion. Those in favor will say aye. Opposed, no? 

The noes appear to have it. 

Mr. CONYERS. May I have a record vote, Mr. Chairman? 

Chairman SENSENBRENNER. Record vote is ordered. 

The question is on the motion to postpone to a day certain offered by the gentleman from Michigan, Mr. Conyers. Those in favor 

of the motion will, as your names are called,l answer aye; those opposed will vote no. 

The clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

[No response.] 

The CLERK. Mr. Smith? 

[No response.] 

The CLERK. Mr. Gallegly? 

[No response.] 

The CLERK. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

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Mr. PENCE. No. 

The CLERK. Mr. Pence, no. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

[No response.] 

The CLERK. Mr. Feeney? 

[No response.] 

The CLERK. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

[No response.] 

The CLERK. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

Ms. WATERS. Aye. 

The CLERK. Ms. Waters, aye. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

[No response.] 

The CLERK. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Smith? 

[No response.] 

The CLERK. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their vote? The gentleman from Texas, Mr. Smith? 

Mr. SMITH. I vote no, Mr. Chairman. 

The CLERK. Mr. Smith, no. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Gallegly? 

Mr. GALLEGLY. No. 

60

The CLERK. Mr. Gallegly, no. 

Chairman SENSENBRENNER. The gentleman from Florida, Mr. 

Feeney? 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. 

Chairman SENSENBRENNER. The gentleman from Iowa, Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? 

The gentlewoman from Texas, Ms. Jackson Lee? 

Ms. JACKSON LEE. How am I recorded? 

The CLERK. Mr. Chairman, I don’t have Ms. Jackson Lee recorded. 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 12 ayes and 20 noes. 

Chairman SENSENBRENNER. And the motion is not agreed to. The 

question recurs on the amendment offered by the gentleman—— Mr. CONYERS. Mr. Chairman, point of order. 

Chairman SENSENBRENNER.—the gentleman from Virginia, Mr. 

Scott. 

The gentleman from Michigan will state his point of order. 

Mr. CONYERS. Mr. Chairman, my point of order is that the motion that I made is in fact debatable. And I make a point of order 

against your preventing us from having a discussion as to why I 

wanted to move it to June 15, 2005, which is simply because there 

have been no hearings. And the House rules, Clause 4, rule 16, provides that a motion of this nature may be subject to debate. 

Chairman SENSENBRENNER. The chair was in error. Motions to 

postpone to a day certain are debatable motions. However, the 

point of order is moot because the motion has already been disposed of by a rollcall vote. 

Mr. CONYERS. Well——

Chairman SENSENBRENNER. So the question does recur on the 

amendment offered—— Mr. NADLER. Mr. Chairman? Mr. Chairman? 

Mr. Chairman? 

Mr. Chairman, I move that further consideration of this bill be 

postponed to June 16. 

Chairman SENSENBRENNER. Okay, the question is whether——

61

Mr. NADLER. And I ask—we are entitled to debate on that now. 

And I yield to the gentleman from Michigan. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. NADLER. Thank you. I yield to the distinguished Ranking 

Member. 

Mr. CONYERS. Thank you, Mr. Nadler. 

Ladies and gentlemen of the Committee, this is a very simple 

matter of process, namely that since there have been no hearings 

on this measure, to tell Members that there were hearings somewhere in the distant past and that therefore there are no further 

hearings necessary on a constitutional amendment to me offends 

the nature of the importance of the Committee and of amending 

the Constitution of the United States. 

And so it was my intention to offer a motion that would set a 

date for such a hearing on or before June 15, 2005. That’s all I’m 

trying to do. 

Now we have a suggestion that we do it on June 16, which I support entirely. But it would seem that the least we could do is have 

hearings in which we bring in some other authorities rather than 

our 5 minutes of debate both pro and con, and examine this question more closely. The importance of amending the Constitution of 

the United States requires that we at least observe, on constitutional amendments, that we have had hearings. I think we should 

have hearings on all measures that we bring to the full Committee, 

but at least on a constitutional amendment. 

And so I urge my colleagues on the other side of the aisle to use 

some sense of fairness in merely postponing this for a short while 

for us to have some current, up-to-date authorities come before our 

Subcommittee to deal with this very important question. 

Mr. NADLER. Thank you. Reclaiming my time. 

I agree with the distinguished Ranking Member. The fact is that 

it’s all well and good to say we’ve had hearings in prior Congresses 

and maybe the testimony wouldn’t change, but it is rather contemptuous of the Constitution to offer an amendment to the Constitution and not even have a single hearing on it, not even have 

a Subcommittee vote on it. Frankly, I don’t know that there is any 

real—if anybody really cares about amending the Constitution for 

this purpose, as opposed to having the political advantages of talking about amending the Constitution. So maybe that’s why we 

don’t care about going through the proper forms, because it’s not 

taken seriously as a real proposition. 

Mr. WEINER. Will the gentleman yield? 

Mr. NADLER. One moment. 

I think that’s a mistake, because one of these days, God forbid, 

it may actually be adopted and then that would be a serious harm 

to the freedom of this country, and it should not be done without 

proper consideration even if the motive is really only for transitory 

political gain. We’re playing with fire here. 

Who wanted me to yield? 

Mr. WEINER. I did, Mr. Nadler. 

Mr. NADLER. Oh, yes. I’ll yield. 

Mr. WEINER. You know, just echoing that point. There’s another 

issue here of timing. The Senate is not going to pass this. The Senate hasn’t in the past. So why don’t, since you’ve been in the emVerDate jul 14 2003 11:31 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00061 Fmt 6659 Sfmt 6601 E:\HR\OC\HR131.XXX HR131
62

barrassing situation with a Republican House, a Republican Senate, a Republican presidency, a Republican judiciary, why don’t you 

let them go first this time? You’ve been passing this and having it 

stopped in the Senate. Apparently your powers of persuasion stop 

at the doors to this room. Perhaps these extra couple of weeks implicit in the Nadler motion and in the Conyers motion, maybe it 

will give you a chance to line up some of your troops in the other 

body, because they’ve shown no indication that they’re prepared to 

walk off this cliff with you. Frankly, that’s probably a good thing. 

Rarely do I wake up in the morning and thank my lucky stars for 

the other body, but in this case maybe in the 2 weeks extra that 

you’ll have, you’ll be able to work your remarkable powers of persuasion on them. And that might be something else that we can do 

with the additional time granted by the Nadler motion. 

Mr. NADLER. Reclaiming my time. 

I agree with the distinguished gentleman, except that I will say 

that I wake up every day thanking God for the existence of the 

other body. 

Chairman SENSENBRENNER. Does the gentleman wish to yield 

back? 

Mr. NADLER. Yes, I yield back. 

Chairman SENSENBRENNER. The chair recognizes himself for 5 

minutes in opposition to the motion. 

The arguments that have been advanced by those who wish to 

delay this matter for a few weeks would have validity if there were 

new arguments that were advanced in opposition to this amendment. The fact is, there aren’t. And having a hearing on this 

amendment will simply have everybody validating the arguments 

that have been made both pro and con in hearings that have been 

held before the Subcommittee in previous Congresses. If there were 

new arguments, I’d like to hear them. But since there aren’t, we 

don’t need to have another hearing. I think we should proceed. If 

we wish to vote against the amendment, that’s our prerogative. 

Mr. CONYERS. Will the Chairman yield? 

Chairman SENSENBRENNER. If not, then we should support it. I 

yield to the gentleman from Michigan. 

Mr. CONYERS. I thank the Chairman for yielding. I wish I knew 

as well as he did that there are no new arguments to be advanced. 

We don’t know who the witnesses would be. I have no way of telling if there are new arguments or not. But furthermore, Mr. Chairman, with all due respect, I don’t think a lot of Members remember 

what the old arguments are, much less what the new ones are 

going to be. 

And I thank the gentleman for yielding. 

Chairman SENSENBRENNER. Reclaiming my time. 

There are hearing records that have been printed in the hearings 

in the past and we will be happy to distribute those to the Members that wish to read them. 

I yield back the balance of my time. 

The question is on the motion—— Mr. WEINER. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from New York, Mr. 

Weiner. 

Mr. WEINER. I don’t need 5 minutes. I just want to strike the last 

word for the purpose of making the argument that, you know, 

63

frankly, part of what we could learn since the last time that we did 

this bill is perhaps this is not the burning, searing issue that you 

thought it was last year or the year before or the year before. Perhaps we’ll hear some evidence that will persuade us that the problem of flag desecration has reached new epidemic proportions. 

Maybe those of us who are not convinced that this has been exactly 

the most riveting problem facing the country since September 11, 

maybe those of us who believe that actually there’s been greater respect for the flag since September 11—more people displaying it, 

more people showing it deference, more people displaying it in a 

way that might run afoul of this constitutional amendment because 

of the way it hangs from their rearview mirror or hangs from their 

car bumper. 

I think, frankly, as the years go by very often we do gain greater 

perspective on things. Sometimes we even find that amendments to 

the Constitution that we passed were not wise and we had to undo 

them. Sometimes we find with greater passage of time that cooler 

heads prevail and that maybe the political imperatives of gaining 

some traction on an issue are not nearly as important as having 

fidelity to the institution of the Constitution. Maybe the political 

posturing that sometimes seems like it’s something valuable to do 

leading up to a presidential campaign, maybe it doesn’t seem so 

ripe right now. That’s the reason why you wait. This is a serious 

matter. It’s not—it should not be seen as just another twig you 

throw on the fire of the political barnstorm. 

I think that, frankly, being cautious and being deliberative, I 

think, shows respect to the weight of the issue that we’re showing 

here. If you have another hearing, if you have other people come 

before us, if you have people testify, who knows—is it so preposterous that someone might be persuaded to change their mind on 

this issue? I don’t think so. And I think that that’s—frankly, very 

often we find ourselves in a situation in this Committee where it’s 

evocative of Groundhog Day, that we’re dealing with issues again 

and again and again and again. Sometimes just the pure drumbeat 

of the wisdom of the witnesses sometimes does have influence, and 

I think that we shouldn’t dismiss it. Because if you take your argument to its logical extreme, we should just say why have hearings? 

There are books that have been printed, articles that have been 

published, let’s just go and read them and let’s just gather up all 

the votes at the end of the week and just vote them all without any 

hearings. 

So I think that the Nadler motion offers some wisdom to us. 

Mr. CONYERS. Would the gentleman yield? 

Mr. WEINER. Certainly. 

Mr. CONYERS. I thank him for raising the question that we 

should all have old copies of hearings distributed to all Members 

that want to find out what all the arguments have been over the 

years. I don’t think that solves the question of the importance of 

hearings right now. 

There is something else that occurred to me, Mr. Weiner, and 

that is the fact that Amnesty International has said that we have 

one of the worst human rights records in the world. And it seems 

to me that if we are to be held as the beacon of democracy, of constitutional order, it’s very important that since 9/11 all of our acts 

are really being scrutinized internationally quite closely. I don’t 

64

think that we would upset the march of the leadership in the 

House, the Senate, and the Executive Branch if we were to hold 

hearings at the Subcommittee level and have some witnesses there. 

In all fairness, this is a matter that is going to be examined 

around the world. As the leader of a democratic constitutional system of Government, as the one country that advocates order more 

than any other, it seems to me exceedingly important that this 

small detail, overlooked until now, be observed. 

And I thank the gentleman for the time. 

Mr. SCOTT. Would the gentleman yield? 

Mr. WEINER. I have a few seconds, but I’ll be glad to yield the 

final balance of my time to Mr. Scott. 

Mr. SCOTT. I thank the gentleman for yielding. 

I just wanted to remind the Committee what we’re voting on: 

Page 2, line 9, strike ‘‘desecration,’’ insert ‘‘burning,’’ so that all flag 

burning will be illegal, not just flag burning that is insulting to the 

sheriff while it would be okay to burn the flag while you’re saying 

something nice. 

Chairman SENSENBRENNER. The time of the gentleman has expired. 

The first question is on the motion offered by the gentleman from 

New York, Mr. Nadler, to postpone consideration until June 16. 

Those in favor will say aye; opposed, no. 

The noes appear to have it. 

A rollcall is ordered. The question is on the motion to postpone. 

Those in favor will, as your names are called, answer aye; those opposed, no. The clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

[No response.] 

The CLERK. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

[No response.]. 

The CLERK. Mr. Keller? 

Mr. KELLER. No. 

65

The CLERK. Mr. Keller, no. Mr. Issa? 

[No response.] 

The CLERK. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

[No response.] 

The CLERK. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

[No response.] 

The CLERK. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Smith? 

[No response.] 

The CLERK. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their votes? The gentleman from California, Mr. Issa? 

66

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. 

Chairman SENSENBRENNER. The gentleman from Florida, Mr. 

Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Chairman SENSENBRENNER. The gentleman from Wisconsin, Mr. 

Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. 

Chairman SENSENBRENNER. The gentleman from Utah, Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. 

Chairman SENSENBRENNER. The gentleman from Arizona, Mr. 

Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their votes? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 11 ayes and 19 noes. 

Chairman SENSENBRENNER. And the motion to postpone consideration until a date certain is not agreed to. 

The question now occurs on the amendment offered by the gentleman from Virginia, Mr. Scott. Those in favor will say aye; opposed, no. 

The noes appear to have it. 

rollcall? The question is on agreeing to the Scott amendment. 

Those in favor will, as your names are called, answer aye; those opposed, no. The clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. No. 

The CLERK. Mr. Coble, no. Mr. Smith? 

Mr. SMITH. No. 

The CLERK. Mr. Smith, no. Mr. Gallegly? 

Mr. GALLEGLY. No. 

The CLERK. Mr. Gallegly, no. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. No. 

The CLERK. Mr. Chabot, no. Mr. Lungren? 

Mr. LUNGREN. No. 

The CLERK. Mr. Lungren, no. Mr. Jenkins? 

Mr. JENKINS. No. 

The CLERK. Mr. Jenkins, no. Mr. Cannon? 

Mr. CANNON. No. 

The CLERK. Mr. Cannon, no. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

67

Mr. INGLIS. No. 

The CLERK. Mr. Inglis, no. Mr. Hostettler? 

Mr. HOSTETTLER. No. 

The CLERK. Mr. Hostettler, no. Mr. Green? 

Mr. GREEN. No. 

The CLERK. Mr. Green, no. Mr. Keller? 

Mr. KELLER. No. 

The CLERK. Mr. Keller, no. Mr. Issa? 

[No response.] 

The CLERK. Mr. Flake? 

Mr. FLAKE. No. 

The CLERK. Mr. Flake, no. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

Mr. FORBES. No. 

The CLERK. Mr. Forbes, no. Mr. King? 

Mr. KING. No. 

The CLERK. Mr. King, no. Mr. Feeney? 

[No response.] 

The CLERK. Mr. Franks? 

Mr. FRANKS. No. 

The CLERK. Mr. Franks, no. Mr. Gohmert? 

Mr. GOHMERT. No. 

The CLERK. Mr. Gohmert, no. Mr. Conyers? 

Mr. CONYERS. Aye. 

The CLERK. Mr. Conyers, aye. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. Aye. 

The CLERK. Mr. Nadler, aye. Mr. Scott? 

Mr. SCOTT. Aye. 

The CLERK. Mr. Scott, aye. Mr. Watt? 

Mr. WATT. Aye. 

The CLERK. Mr. Watt, aye. Ms. Lofgren? 

Ms. LOFGREN. Aye. 

The CLERK. Ms. Lofgren, aye. Ms. Jackson Lee? 

Ms. JACKSON LEE. Aye. 

The CLERK. Ms. Jackson Lee, aye. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

Mr. MEEHAN. Aye. 

The CLERK. Mr. Meehan, aye. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. Aye. 

The CLERK. Mr. Weiner, aye. Mr. Schiff? 

Mr. SCHIFF. Aye. 

The CLERK. Mr. Schiff, aye. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. Aye. 

The CLERK. Ms. Sa ́nchez, aye. Mr. Smith? 

[No response.] 

68

The CLERK. Mr. Van Hollen? 

Mr. VAN HOLLEN. Aye. 

The CLERK. Mr. Van Hollen, aye. Mr. Chairman? 

Chairman SENSENBRENNER. No. 

The CLERK. Mr. Chairman, no. 

Chairman SENSENBRENNER. Members who wish to cast or change 

their votes? The gentleman from California, Mr. Issa? 

Mr. ISSA. No. 

The CLERK. Mr. Issa, no. 

Chairman SENSENBRENNER. The gentleman from Florida, Mr. 

Feeney. 

Mr. FEENEY. No. 

The CLERK. Mr. Feeney, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 11 ayes and 19 noes. 

Chairman SENSENBRENNER. The gentlewoman from Texas, Ms. 

Jackson Lee? 

The CLERK. Mr. Chairman, Ms. Jackson Lee is recorded as an 

aye. 

Chairman SENSENBRENNER. The clerk will report. 

The CLERK. Mr. Chairman, there are 11 ayes and 19 noes. 

Chairman SENSENBRENNER. And the amendment is not agreed 

to. Are there further amendments? 

The gentlewoman from—— Mr. CONYERS. Mr. Chairman? 

Chairman SENSENBRENNER. The gentleman from Michigan, Mr. 

Conyers. 

Mr. CONYERS. Could I ask unanimous consent to put the Amnesty International record of the United States in the record at this 

point? 

Chairman SENSENBRENNER. Without objection. 

Mr. CONYERS. Thank you. 

Mr. KING. Mr. Chairman? 

Chairman SENSENBRENNER. For what purpose does the gentleman from Iowa seek recognition? 

Mr. KING. Reserving my right to object, I wonder if the Ranking 

Member might yield to a question? 

Mr. CONYERS. Of course. With pleasure, sir. 

Mr. KING. With regard to the ranking of the United States by 

Amnesty International, could you inform this Committee as to 

what nation is ranked first and where the United States actually 

ranks in human rights? 

Mr. CONYERS. I don’t have it in this document. But if we were 

to have a hearing, I’d be happy to provide that information for you. 

But that’s the point that I’m putting it in the record, so you can 

read it and find out where we are. I don’t know that this is specifically——

Mr. CHABOT. Would the gentleman yield? 

Mr. KING. I would yield. 

Mr. CHABOT. Could I ask the gentleman a question also. I think 

your statement was, Mr. Conyers, that according to that article the 

United States has one of the worst human rights records in the 

world. Is that correct, that it says that? 

Mr. CONYERS. Yes, sir. 

69

Mr. CHABOT. Because I find that statement, if it’s contained in 

that report, an absurdity. And I just can’t believe that—I don’t believe it. It’s hard for me to comprehend that any organization, even 

Amnesty International, could make that statement. 

Do you believe that that statement is true, Mr. Conyers? And I 

have the utmost respect for you, so I think it’s really a rather important issue. 

Mr. CONYERS. Well, I do, too. That’s why I’m trying to put it in 

the record. I mean, if it’s incorrect, you read about it or I’ll provide 

you with a copy——

Mr. CHABOT. Do you think it’s correct, though, is my question. 

Mr. CONYERS. Oh, yes. Of course. Everything I say I believe is 

correct. 

Mr. CHABOT. So you believe that the United States is——

Mr. CONYERS. Has one of the worst records. 

Mr. CHABOT.—has one of the worst records on human rights——

Mr. WEINER. Reserving the right to object. 

Mr. CONYERS. I’ve already answered you once, but I’ll do it again. 

Mr. CHABOT. Okay. I’m surprised, but if—I’m surprised that you 

would say that. 

Mr. CONYERS. Absolutely. 

Mr. WEINER. Reserving the right to object. 

Mr. KING. Reclaiming my time. 

Chairman SENSENBRENNER. The time belongs to the gentleman 

from Iowa, Mr. King. 

Mr. KING. Mr. Chairman, I’d ask unanimous consent to introduce 

some other information into the record with regard to the United 

States record with regard——

Chairman SENSENBRENNER. Well, the pending UC request, which 

you’ve reserved the right to object to, is for Mr. Conyers to introduce the Amnesty International report to which he has referred 

into the record. 

Is there objection? 

Mr. KING. Mr. Chairman, with regard to that lack——

Chairman SENSENBRENNER. The gentleman reserves the right to 

object. 

Mr. KING. Mr. Chairman, I object. 

Mr. LUNGREN. Mr. Chairman, I object. 

Chairman SENSENBRENNER. The objection is heard. Are there 

further amendments? 

Ms. LOFGREN. Mr. Chairman? 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Lofgren. 

Ms. LOFGREN. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

Ms. LOFGREN. I would ask unanimous consent that the amendment be considered as read. 

Mr. WEINER. Mr. Chairman, a point of order. 

Chairman SENSENBRENNER. The clerk will report——

Mr. WEINER. Mr. Chairman, a point of order. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

70

The CLERK. Amendment to H.J. Res. 10, offered by Ms. Lofgren 

of California. Page 2, line 8, insert at the beginning, ‘‘Section 1.’’. 

Page 2, after line 9——

Mr. WEINER. Mr. Chairman, point of order. 

Chairman SENSENBRENNER. A point of order is reserved on the 

amendment. Without objection, the amendment is considered as 

read. 

[The amendment of Ms. Lofgren follows:]

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Lofgren——

Mr. WEINER. Mr. Chairman, I have a point of order. 

Chairman SENSENBRENNER.—will be recognized for 5 minutes. 

A point of order has been reserved. It has not been made. The 

gentlewoman from California, Ms. Lofgren, is recognized for 5 minutes. 

Mr. WEINER. Mr. Chairman, I have a point of order. 

Chairman SENSENBRENNER. The gentleman will state his point of 

order. 

Mr. WEINER. Mr. Chairman, my point of order is this. Does not 

the Ranking Member, if not authorized by unanimous consent to 

introduce materials into the record, is he not then permitted to do 

so by a simple vote of the Committee? 

Chairman SENSENBRENNER. The parliamentarian is looking in 

the rules on that. 

Mr. WEINER. And if I could further on my point of order, you 

know, it is——


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Chairman SENSENBRENNER. What I will tell the gentleman from 

New York is that gentleman from Michigan asked unanimous consent to insert material into the record. The gentleman from California, Mr. Lungren, objected. And as a result of the objection, the 

unanimous consent request of the gentleman from Michigan has 

failed. 

Mr. WEINER. This much I understand. My point of order revolves 

around the rights of every Member and the custom in this Committee to permit Members to put things into the record regardless 

of whether Members on either side agree with them. And the fact 

that it is customary at the end of a hearing for the Chairman to 

say, as a point of general proceedings, that Members have unanimous consent of five legislative days to insert material. And I believe that if that objection is upheld, then we have to consider it 

to be an objection at the end of the record as well, where you’re—— Chairman SENSENBRENNER. Well, if the gentleman from New 

York will yield, we have never asked in this Committee general 

leave for Members to insert material into the record. And in fact, 

the House rules, what they do do is give every Member a right to 

file additional supplemental, minority, or dissenting views to bills 

that have been reported. And the chair makes that statement routinely on behalf of all Members following the reporting of a bill. 

But what is put into dissenting views is up to those who wish to 

submit the dissenting views, and one does not need unanimous consent in order to put dissenting views or supplemental views into 

the record. 

Mr. WEINER. I’m still waiting on the ruling on my point of order. 

Mr. CONYERS. Would the gentleman yield? 

Mr. WEINER. I don’t know if I have any time to yield, but certainly. 

Mr. CONYERS. I thank you for yielding, because obviously, after 

your point of order, I’m going to make a motion that this record of 

Amnesty International be inserted in the record at this point. 

Chairman SENSENBRENNER. The chair is prepared to rule on the 

point of order that has been raised by the gentleman from New 

York. The gentleman from Michigan, Mr. Conyers, should he wish, 

can make a motion to include the material from Amnesty International, or other material, into the record. 

Mr. WEINER. Thank you, Mr. Chairman. 

Ms. LOFGREN. Mr. Chairman? 

Chairman SENSENBRENNER. Okay, we are now at recognizing the 

gentlewoman from California for 5 minutes. Since we do have two 

votes, the chair will recess the Committee until 1 o’clock. We have 

this bill and two other bills that we would like to get done today. 

The chair would implore Members to return promptly at 1 o’clock. 

The Committee stands recessed. 

[Whereupon, the Committee was recessed from 11:40 a.m until 

1:12 p.m.] 

Chairman SENSENBRENNER. The Committee will be in order. A 

working quorum is present. 

The gentleman from Michigan. 

Mr. CONYERS. Mr. Chairman, I ask unanimous consent to include 

a report from Amnesty International in our proceedings in terms 

of the gun manufacturers and gun dealers, the bill before the Committee. And it deals with our human rights record. 

72

Chairman SENSENBRENNER. Without objection. 

[The information follows:]


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Chairman SENSENBRENNER. Pending when the Committee recessed was an amendment that was offered by the gentlewoman 

from California, Ms. Lofgren, on which the gentleman from Ohio, 

Mr. Chabot, had reserved a point of order. The amendment by the 

gentlewoman from California was considered as read and open for 

amendment at any point. 

The chair recognizes the gentlewoman from California for 5 minutes. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

This, as Members have pointed out, is an amendment that has 

been considered by this Committee on numerous occasions. But I 

think all of us, especially after 9/11, have, if possible, an even 

stronger feeling about our nation’s flag. And I think all of us, when 

we walk over to the Capitol, and for me especially at night, when 

you see our flag, it really does something to our hearts about what 

this country stands for and how committed each and every one of 

us is to our country and to the freedoms that our flag stands for. 

One of those freedoms is freedom of speech. And one of the 

things that has made our country strong and free is the proposition 

that Americans are free to express their opinions even when we 

don’t agree with those opinions. And as has been mentioned by 

other Members, the amendment before us would be, if adopted, the 

first time that the first amendment to the Constitution of the 

United States had been altered by an amendment. I think that we 

would make a mistake to amend the first amendment. That’s why 

our soldiers go off and fight for our country, to keep our freedoms 

down through the lines. 

But I think there’s another reason why this amendment has been 

offered, and that’s to divert attention from something that we can 

do something about, and that’s making sure that our veterans get 

what they are entitled to for the efforts they have made for their 

country. My amendment would make sure that this article would 

not take effect until Congress, by law, ensures that the veterans 

benefits promised to an individual in connection with that individual’s enlistment or induction in the armed services cannot, after 

that enlistment or induction, be diminished. 

Now, why is that important? Veterans are getting a raw deal 

today, and I think we all know it. In the Veterans Affairs Committee, the budget resolution we’ve adopted, the Veterans Committee is required to identify $155 million in benefit cuts in the 

next year, or $798 million in cuts to veterans benefits over the next 

5 years. We know that while there was a small increase in some 

accounts, the need for care far exceeds what the Congress is providing. In fact, patient resources, without collections, have increased about 13 percent, but the number of patients has increased 

by 25 percent, leaving a 13 to 14 percent gap. And maybe that’s 

one of the reasons why, according to the American Legion, I believe, 30,000 veterans are waiting 6 months or longer for an appoint at a veterans hospital. And the budget that we have adopted 

will not change that. 

Now, when we take a look at what the budget does, this 13 to 

14 percent gap in what we’re funding and what veterans need also 

includes a co-payment that is going to double or triple what veterans are required to pay as a co-payment for their monthly supply 

of prescription drugs. And under the proposed budget, the Veterans 

92

of Foreign Wars estimates that as many as 220,000 men and 

women veterans could lose benefits. In fact, the American Legion’s 

national commander said this: No active-duty servicemember in 

harm’s way should ever have to question the Nation’s commitment 

to veterans. This is the wrong message at the wrong time to the 

wrong constituency. 

And Thomas Corey, the national president of the Vietnam Veterans of America, said, and I quote: It does a disservice to those 

who donned the uniform to defend the rights, the principles and 

freedoms that we hold dear. 

Last year, in a budget that was actually better than the one this 

year, then-VFW Commander Edward Banas, Sr. complained the 

funding package is a disgrace and a sham. To ask this Nation’s veterans to subsidize their health care is outrageous. They have already paid for health care with their sweat and their blood. 

I believe that symbols are important. But action—action to make 

sure that the veterans, the men and women who join and put their 

lives on the line; action to make sure that they get what they deserve—is what this Congress ought to do. 

I strongly urge the Committee to adopt this amendment. 

Chairman SENSENBRENNER. The time of the gentlewoman has expired. Does the gentleman from Ohio, Mr. Chabot, insist on his 

point of order? 

Mr. CHABOT. The gentleman will state his point of order. 

Mr. CHABOT. Mr. Chairman, I make a point of order that the 

amendment is not germane under House rules, as it does not relate 

to the underlying purpose of the resolution and attaches additional 

criteria to the ratification process. In addition, I would note that 

it’s further not germane because the substance of the amendment 

is not within the jurisdiction of this Committee, but rather is within the jurisdiction of the Veterans Affairs Committee. 

I yield back. 

Ms. LOFGREN. On the point of order, Mr. Chairman. 

Chairman SENSENBRENNER. The gentlewoman from California. 

Ms. LOFGREN. I very much disagree. This Committee has exclusive jurisdiction over constitutional amendments. A constitutional 

amendment to provide that veterans of this country should get 

what they were promised by way of health care and benefits would 

not go to the Veterans Affairs Committee. All constitutional 

amendments go to the House Judiciary Committee. So I would urge 

that we adopt this amendment to the amendment and that we not 

duck this issue. This is important and we need to vote to adopt it 

and to move forward. 

So I strongly believe that this is both germane and certainly 

more than appropriate. 

I yield back. 

Chairman SENSENBRENNER. The chair is prepared to rule. The 

gentleman from Ohio has made a point of order in which he argues 

that the amendment is not germane, one, because it deals with a 

different issue than the underlying bill, and secondly that, if it was 

a stand-alone provision, it would not be in the jurisdiction of the 

Committee. 

The chair agrees with the gentlewoman from California and disagrees with the gentleman from Ohio on the second point. All constitutional amendments are within the jurisdiction of the Judiciary 

93

Committee irrespective of subject. However, the chair agrees with 

the gentleman from Ohio that the amendment is not germane for 

the first part of his argument, in that it deals with a different topic 

than the underlying joint resolution. 

Therefore, the chair sustains the point of order of the gentleman 

from Ohio. 

Are there further amendments? 

Ms. LOFGREN. Mr. Chairman, I challenge the chair’s ruling. 

Chairman SENSENBRENNER. The gentlewoman from California 

appeals the decision of the chair. The gentleman from North Carolina moves to table the appeal. 

Those in favor of tabling the appeal of the decision of the chair 

will, as your names are called, answer aye; those opposed, no. The 

clerk will call the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. Mr. Smith? 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. Mr. Gallegly? 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. Mr. Lungren? 

Mr. LUNGREN. Aye. 

The CLERK. Mr. Lungren, aye. Mr. Jenkins? 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. Mr. Cannon? 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. Mr. Hostettler? 

Mr. HOSTETTLER. Aye. 

The CLERK. Mr. Hostettler, aye. Mr. Green? 

[No response.] 

The CLERK. Mr. Keller? 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. Mr. Issa? 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

[No response.] 

The CLERK. Mr. King? 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. Mr. Feeney? 

[No response.] 

The CLERK. Mr. Franks? 

94

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. Mr. Gohmert? 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. Mr. Conyers? 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. No. 

The CLERK. Mr. Nadler, no. Mr. Scott? 

[No response.] 

The CLERK. Mr. Watt? 

[No response.] 

The CLERK. Ms. Lofgren? 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. Ms. Jackson Lee? 

[No response.] 

The CLERK. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

Mr. WEINER. No. 

The CLERK. Mr. Weiner, no. Mr. Schiff? 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. Mr. Smith? 

[No response.] 

The CLERK. Mr. Van Hollen? 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen, no. Mr. Chairman? 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? The gentleman from Virginia, Mr. Goodlatte? 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Chairman SENSENBRENNER. The gentleman from Wisconsin, Mr. 

Green? 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Scott? 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. 

Chairman SENSENBRENNER. The gentleman from North Carolina, 

Mr. Watt? 

Mr. WATT. No. 

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The CLERK. Mr. Watt, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 17 ayes and 9 noes. 

Chairman SENSENBRENNER. And the motion to table the appeal 

from the decision of the chair is agreed to. 

Are there further amendments? 

Ms. LOFGREN. Mr. Chairman? 

Chairman SENSENBRENNER. The gentlewoman from California, 

Ms. Lofgren. 

Ms. LOFGREN. I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Amendment to H.J. Res. 10, offered by Ms. Lofgren 

of California. Page 2, strike lines 8 and 9, and insert the following: 

Every flag of the United States manufactured in or imported into 

the United States after the effective date of this amendment must 

be manufactured out of flame-resistant material. 

Amend the title so as to read, ‘‘Joint Resolution Proposing an 

Amendment to the Constitution of the United States Requiring 

Every Flag of the United States to be Manufactured Out of FlameResistant Material.’’

Chairman SENSENBRENNER. The gentlewoman from California is 

recognized for 5 minutes. 

[The amendment follows:]

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Ms. LOFGREN. Mr. Chairman, this is actually the other side of 

the coin of Mr. Scott’s amendment. As I said in the discussion of 

the prior amendment, who loves our flag is not the question here 

today. I love our flag. And I am sure that the proponents of the 

constitutional amendment love our flag. The question is how to protect our Constitution, and can we also do something to protect the 

symbol of freedom that our flag is. 

As many of you know from my efforts on the Intellectual Property Subcommittee, I am a person who believes in technology. And 

I believe that when there are technological measures that can be 

taken that disturb in no way the freedoms that we have, that that 

is a better remedy than going about amending the first amendment 

to the Constitution. 

Now, I don’t want to see people burning our flag. And if this 

amendment were passed, that would not be possible. Our flag could 

not be burned. And I would like to see that because it really burns 

me up and makes me mad to see people who would abuse our flag 

and burn our flag. So I think this is a much better approach to preventing that kind of misbehavior while still making sure that we 

do nothing to disturb the first amendment to the Constitution. And 

after all, as Mr. Scott pointed out in his earlier amendment in the 

morning, what we’re talking about is the content of action, not the 

action itself. 


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So I don’t want to unduly prolong this debate. I think this is 

meritorious. 

Mr. GALLEGLY. Would the gentlelady yield? 

Ms. LOFGREN. I would yield, Mr. Gallegly. 

Mr. GALLEGLY. I appreciate the spirit in which you have introduced this amendment. But the amendment that you are talking 

about has to do with desecrating the flag. And obviously, as much 

as I’m appalled by anyone that would burn the flag, I’m equally as 

appalled at anyone that would desecrate the flag in other ways. So 

I think that the real issue here is desecrating the flag, not only the 

terrible act of burning the flag. So I—— Ms. LOFGREN. Reclaiming my time. If the gentleman is offering 

a friendly amendment to the amendment that would add making 

the flag stain-resistant, I would accept that friendly amendment. 

Mr. GALLEGLY. If the gentlelady would further yield, would you 

agree to make it a capital offense in the case that someone decided 

to——

Ms. LOFGREN. That would be up to Congress in later—— Mr. GALLEGLY. I would yield back. 

Ms. LOFGREN. I actually retain the time. This is a constitutional 

amendment that would be part of the enabling legislation. I would 

say, as the Member probably knows, I am not an opponent of the 

death penalty in every case and I have voted for the death penalty 

in appropriate cases. Whether this would be such a case is something that we should have hearings on. 

Unless there is further discussion, I would yield back. 

Chairman SENSENBRENNER. The question is on the amendment 

offered by the gentlewoman from California. Those in favor will say 

aye; opposed, no. 

The chair believes the noes have it. The noes have it and the 

amendment is not agreed to. 

Are there further amendments? 

If there are no further amendments, a reporting quorum is 

present. The question occurs on the motion to report H.J. Res. 10 

favorably. All in favor will say aye; opposed, no. 

The ayes appear to have it. 

Mr. CONYERS. Record vote. 

Chairman SENSENBRENNER. A record vote is requested. Those in 

favor of the motion to report H.J. Res. 10 favorably will, as your 

names are called, answer aye; those opposed, no. The clerk will call 

the roll. 

The CLERK. Mr. Hyde? 

[No response.] 

The CLERK. Mr. Coble? 

Mr. COBLE. Aye. 

The CLERK. Mr. Coble, aye. Mr. Smith? 

Mr. SMITH. Aye. 

The CLERK. Mr. Smith, aye. Mr. Gallegly? 

Mr. GALLEGLY. Aye. 

The CLERK. Mr. Gallegly, aye. Mr. Goodlatte? 

[No response.] 

The CLERK. Mr. Chabot? 

Mr. CHABOT. Aye. 

The CLERK. Mr. Chabot, aye. Mr. Lungren? 

Mr. LUNGREN. Aye. 

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The CLERK. Mr. Lungren, aye. Mr. Jenkins? 

Mr. JENKINS. Aye. 

The CLERK. Mr. Jenkins, aye. Mr. Cannon? 

Mr. CANNON. Aye. 

The CLERK. Mr. Cannon, aye. Mr. Bachus? 

[No response.] 

The CLERK. Mr. Inglis? 

Mr. INGLIS. Aye. 

The CLERK. Mr. Inglis, aye. Mr. Hostettler? 

[No response.] 

The CLERK. Mr. Green? 

Mr. GREEN. Aye. 

The CLERK. Mr. Green, aye. Mr. Keller? 

Mr. KELLER. Aye. 

The CLERK. Mr. Keller, aye. Mr. Issa? 

Mr. ISSA. Aye. 

The CLERK. Mr. Issa, aye. Mr. Flake? 

[No response.] 

The CLERK. Mr. Pence? 

[No response.] 

The CLERK. Mr. Forbes? 

[No response.] 

The CLERK. Mr. King? 

Mr. KING. Aye. 

The CLERK. Mr. King, aye. Mr. Feeney? 

[No response.] 

The CLERK. Mr. Franks? 

Mr. FRANKS. Aye. 

The CLERK. Mr. Franks, aye. Mr. Gohmert? 

Mr. GOHMERT. Aye. 

The CLERK. Mr. Gohmert, aye. Mr. Conyers? 

Mr. CONYERS. No. 

The CLERK. Mr. Conyers, no. Mr. Berman? 

[No response.] 

The CLERK. Mr. Boucher? 

[No response.] 

The CLERK. Mr. Nadler? 

Mr. NADLER. No. 

The CLERK. Mr. Nadler, no. Mr. Scott? 

Mr. SCOTT. No. 

The CLERK. Mr. Scott, no. Mr. Watt? 

[No response.] 

The CLERK. Ms. Lofgren? 

Ms. LOFGREN. No. 

The CLERK. Ms. Lofgren, no. Ms. Jackson Lee? 

Ms. JACKSON LEE. No. 

The CLERK. Ms. Jackson Lee, no. Ms. Waters? 

[No response.] 

The CLERK. Mr. Meehan? 

[No response.] 

The CLERK. Mr. Delahunt? 

[No response.] 

The CLERK. Mr. Wexler? 

[No response.] 

The CLERK. Mr. Weiner? 

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[No response.] 

The CLERK. Mr. Schiff? 

[No response.] 

The CLERK. Ms. Sa ́nchez? 

Ms. SA ́ NCHEZ. No. 

The CLERK. Ms. Sa ́nchez, no. Mr. Smith? 

[No response.] 

The CLERK. Mr. Van Hollen? 

Mr. VAN HOLLEN. No. 

The CLERK. Mr. Van Hollen, no. Mr. Chairman? 

Chairman SENSENBRENNER. Aye. 

The CLERK. Mr. Chairman, aye. 

Chairman SENSENBRENNER. Are there further Members who 

wish to cast or change their vote? The gentleman from New York, 

Mr. Weiner? 

Mr. WEINER. How am I recorded? 

The CLERK. Mr. Chairman, Mr. Weiner is not recorded. 

Mr. WEINER. No. 

The CLERK. Mr. Weiner, no. 

Chairman SENSENBRENNER. The gentleman from Virginia, Mr. 

Goodlatte? 

Mr. GOODLATTE. Aye. 

The CLERK. Mr. Goodlatte, aye. 

Chairman SENSENBRENNER. The gentleman from Alabama, Mr. 

Bachus? 

Mr. BACHUS. Aye. 

The CLERK. Mr. Bachus, aye. 

Chairman SENSENBRENNER. The gentleman from California, Mr. 

Schiff? 

Mr. SCHIFF. No. 

The CLERK. Mr. Schiff, no. 

Chairman SENSENBRENNER. Further Members who wish to cast 

or change their vote? If not, the clerk will report. 

The CLERK. Mr. Chairman, there are 17 ayes and 9 noes. 

Chairman SENSENBRENNER. And the motion to report favorably 

is agreed to. Without objection, the staff is directed to make any 

technical and conforming changes and all Members will be given 2 

days, as provided by the House rules, and wish to submit additional dissenting, supplemental, or minority views. 

[Intervening business.] 

Chairman SENSENBRENNER. The Chair would like to thank the 

Members and staff for their patience. We have completed a very 

ambitious agenda today. There will be no markup tomorrow because the agenda has been completed, and the Committee stands 

adjourned. 

[Whereupon, at 3:43 p.m., the Committee was adjourned.] 

(100)

1Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher, & David W. Leebron, HUMAN

RIGHTS 119 (Foundation Press 1999). 2See http://web.amnesty.org/library/Index/ENGPOL100012005 (Amnesty International Report 

2005). 3 Http://nobelprize.org/peace/laureates/1977/amnesty-lecture.html (Amnesty International—

Nobel Lecture). 

ADDITIONAL VIEWS

The American flag serves a unique role as the symbol of our 

country’s values and the embodiment of the rights guaranteed to 

all Americans under the United States Constitution—the supreme 

law of the land and the ultimate guardian of human rights in the 

United States. The protection of fundamental human rights was 

central to the purpose of our founding document, which serves as 

the longest-enduring written charter of government and a model of 

self-governance that has inspired the world. The United States 

stands as a bulwark against the tyranny that has marred human 

history, and as a beacon that inspires other peoples and nations. 

America is a catalyst for human freedom and liberty. In World War 

II, America’s soldiers liberated millions and restored light to a 

darkened continent. During the Cold War, the United States gave 

voice to millions who aspired toward human dignity, freedom and 

liberty. Today, the struggle for freedom continues, and the United 

States continues to lead the effort to advance this noble cause. The 

United States Constitution has inspired and served as a model for 

numerous national constitutions and international (and regional) 

human rights norms.1

Despite this fact, at the Committee on the Judiciary’s markup of 

H.J. Res. 10, the ‘‘Flag Protection Amendment,’’ Ranking Member 

Conyers stated, ‘‘Amnesty International has said that we have one 

of the worst human rights records in the world.’’ Mr. Chabot, 

Chairman of the House Constitution Subcommittee, asked for clarification, stating, ‘‘I think your statement was, Mr. Conyers, that according to that article the United States has one of the worst 

human rights records in the world.’’ Mr. Chabot then asked Ranking Member Conyers, ‘‘Do you think it’s correct[?]’’ to which Ranking Member Conyers replied, ‘‘Oh yes. Of course. Everything I say 

I believe is correct.’’ Mr. Chabot then repeated the question, asking 

if Ranking Member Conyers believed that the United States has 

one of the worst human rights records in the world. Ranking Member Conyers stated, ‘‘Absolutely.’’ Ranking Member Conyers was referring to Amnesty International Report 2005.2 Amnesty International, however, does not ‘‘presume[] to rank governments or 

countries, nor desire[] to single out any regime or group of regimes 

as ‘the worst on earth.’ ’’ 3

In sharp contrast to Ranking Member Conyers’ belief, Freedom 

House, a widely-respected, non-partisan, and broadly-based nonprofit organization, consistently rates the United States in its Freedom in the World survey in the ‘‘most free’’ category. The United 

101

4See http://www.freedomhouse.org/ratings/allscore04.xls (Freedom in the World Country Ratings 1972–2003). 5 Http://www.freedomhouse.org/research/freeworld/2004/methodology.htm (Freedom in the 

World 2004: Survey Methodology). 6 Id. 

7 Id. 

8 Id. 

9 Id. 

10See http://www.freedomhouse.org/research/freeworld/2005/table2005.pdf (Freedom in the 

World 2005 Table of Independent Countries Comparative Measures of Freedom). 11See http://www.freedomhouse.org/ratings/allscore04.xls (Freedom in the World Country Ratings 1972–2003). 12 Henkin, supra note 1, at 119. 13See http://www.state.gov/g/drl/hr/ (U.S. Department of State Bureau of Democracy, Human 

Rights, and Labor: Human Rights). 

States also receives the highest rating in its commitment to respecting political rights and civil liberties.4 The survey rates the 

rights and freedoms enjoyed by individuals and does not equate 

constitutional guarantees of human rights with the actual realization of these rights by citizens of countries it ranks.5 Both laws and 

actual practices are factored into the rating decisions.6 According 

to the survey, political rights enable people to participate freely in 

the political process, including the right to vote, compete for public 

office, and elect representatives who have a decisive impact on public policies and are accountable to the electorate.7 Civil liberties 

allow for the freedoms of expression and belief, associational and 

organizational rights, rule of law, and personal autonomy without 

interference from the state.8 The rule of law analysis encompasses 

the degree to which a country provides protection from police terror, unjustified imprisonment, exile, or torture.9 The survey rates 

countries on both political rights and civil liberties, rating them on 

a scale of 1 to 7 with 1 representing the most free and 7 the least 

free.10 The United States consistently receives a rating of 1 on both 

political rights and civil liberties.11

According to Louis Henkin, a highly respected and often-cited 

professor of human rights law:

The United States has the oldest continuing commitment to 

‘‘constitutionalism,’’ including a commitment to individual 

rights and to the bill of rights as supreme constitutional law. 

It also has a long—perhaps the longest—history of constitutional government, including institutions to monitor and enforce respect for human rights. The international human rights 

movement, born during the Second World War, owes much to 

the example of the United States, and U.S. constitutional 

rights have been a principal source for international human 

rights law and a principal model for constitutional rights in the 

many new constitutions of old and new countries in the second 

half of the Twentieth Century.12

There is a broad, bipartisan, and long-standing consensus in the 

United States that the protection of human rights helps secure 

peace, deter aggression, promote the rule of law, combat crime and 

corruption, strengthen democracies, and prevent humanitarian crises.13 Consequently, a central goal of U.S. foreign policy has been 

the promotion of respect of human rights. The United States Department of State Bureau of Democracy, Human Rights, and Labor 

compiles a 5,000 page annual report regarding the status of internationally-recognized human rights, which it transmits to ConVerDate jul 14 2003 11:31 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00101 Fmt 6604 Sfmt 6604 E:\HR\OC\HR131.XXX HR131
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14See http://www.state.gov/g/drl/rls/hrrpt/2004/index.htm (U.S. Department of State Bureau of 

Democracy, Human Rights, and Labor: Human Rights). 

gress.14 As this report indicates, the United States’ commitment to 

human rights extends beyond her own citizens to those of other 

countries. This commitment has most recently been manifested in 

America’s liberation of Afghanistan and Iraq from totalitarian regimes. The struggle for human liberty continues on other fronts, 

and America will continue to lead this fight. 

The American flag symbolizes America’s enduring commitment to 

these values and merits protection from desecration. The flag has 

united America in times of crisis and continues to serve as an 

international symbol of freedom to those who must have it. As he 

had throughout his political life, in his Farewell Address, President 

Reagan evoked an image of America as a ‘‘shining city upon a hill’’ that has inspired the hopes and aspirations of all of mankind. Near 

the end of his address, President Reagan asked, ‘‘And how stands 

the city on this winter night?’’ He then answered by stating: ‘‘After 

200 years, two centuries, she still stands strong and true on the 

granite ridge, and her glow has held steady no matter what storm. 

And she’s still a beacon, still a magnet for all who must have freedom, for all the pilgrims from all the lost places who are hurtling 

through the darkness toward home.’’ This is the America that the signatories below saw then, and see 

still.

F. JAMES SENSENBRENNER, JR. 

LAMAR SMITH. 

ELTON GALLEGLY. 

STEVE CHABOT. 

DANIEL E. LUNGREN. 

WILLIAM L. JENKINS. 

CHRIS CANNON. 

BOB INGLIS. 

JOHN N. HOSTETTLER. 

MARK GREEN. 

RIC KELLER. 

DARRELL ISSA. 

MIKE PENCE. 

J. RANDY FORBES. 

STEVE KING. 

(103)

1The proposed amendment reads, in its relevant part, ‘‘The Congress shall have power to prohibit the physical desecration of the flag of the United States.’’ H.J. Res. 10 109th Cong. (2005). 2Most of these statutes were eventually struck down as unconstitutional in a series of lower 

court decisions, usually on the grounds of vagueness. 3Pub. L. 90–381, Sec. 1, 82 Stat. 291 (1989) (18 U.S.C. 700). 4 394 U.S. 576 (1969). 

DISSENTING VIEWS

H.J. Res. 10, the so-called ‘‘Flag Protection Amendment,’’ would 

mark the first time in our nation’s history that the Constitution 

has ever been amended in order to curtail an existing right. In this 

instance, the proposed amendment would narrow the scope of the 

First Amendment’s protection of free expression by allowing Congress to enact legislation prohibiting ‘‘physical desecration’’ of the 

flag of the United States. This dangerous and unnecessary assault 

on our fundamental liberties would set a terrible precedent. For the 

reasons set out below, we respectfully dissent. 

BACKGROUND

This Constitutional amendment is a response to a pair of Supreme Court decisions, Texas v. Johnson, 491 U.S. 397 (1989) and 

United States v. Eichman, 496 U.S. 310 (1990), in which the Court 

held that state and Federal Government efforts to prohibit physical 

‘‘desecration’’ of the flag by statute were content-based political 

speech restrictions and imposed unconstitutional limitations on 

that speech.1

The first flag desecration statutes originated in the States in the 

late 19th century after supporters failed to obtain Federal legislation prohibiting commercial or political ‘‘misuse’’ of the flag. During 

the period between 1897 and 1932, flag desecration statutes were 

enacted in every state. These statutes outlawed the use of the flag 

for a number of purposes, including commercial advertising, marking the flag for political, commercial or other purposes, or publicly 

mutilating, trampling, defacing, defiling or casting contempt, by 

words or action, upon the flag.2

Congress remained relatively silent on the issue throughout that 

period, approving the first Federal flag desecration law in 1968 in 

the aftermath of a highly publicized Central Park flag burning incident in protest against the Vietnam War. The 1968 Federal law 

made it illegal to ‘‘knowingly’’ cast ‘‘contempt’’ upon ‘‘any flag of the 

United States by publicly mutilating, defacing, defiling, burning, or 

trampling upon it.’’ 3 The law imposed a penalty of up to $1,000 in 

fines and/or 1 year in prison. 

Shortly after passage of the 1968 law, the Supreme Court considered three notable cases concerning the flag; however, none of 

these decisions directly addressed the flag burning issue. In Street 

v. New York,4 the Court ruled that New York could not convict a 

person for making verbal remarks disparaging the flag. In 1972, 

104

5 415 U.S. 566 (1974). 

6 418 U.S. 405 (1974). 

7 491 U.S. 397 (1989). 

8Tex. Penal Code Ann. §42.09(a)(3) (1989). 9Tex. Penal Code Ann. §42.09(b) (1989). 10 706 S.W. 2d 120 (1986). 11 755 S.W. 2d 92 (1988). 12 485 U.S. 312 (1988). 13The Court ruled that Texas’ proffered interest of preventing breaches of the peace was not 

implicated and that its interest in preserving the flag as a symbol of nationhood and national 

unity was related to the suppression of expression. 14 Certain uses of the flag are misdemeanors under 4 U.S.C. 3, punishable by a fine of not 

more than $100 or imprisonment of not more than thirty days or both. Acts criminalized under 

the Court ruled in Smith v. Goguen,5 that Massachusetts could not 

prosecute a person for wearing a small cloth replica of the flag on 

the seat of his pants based on a state law making it a crime to publicly treat the U.S. flag with ‘‘contempt.’’ The Court ruled that the 

law was unconstitutionally vague. In Spence v. Washington,6 the 

Court overturned a Washington state ‘‘improper use’’ flag law, 

which, among other things, barred placing any marks or designs 

upon the flag or displaying such altered flags in public view. These 

decisions intimated, but did not expressly hold, that flag burning 

for political purposes constituted protected activity under the First 

Amendment. 

In 1989, the Supreme Court addressed directly whether a flag 

burning statute violates the First Amendment in Texas v. Johnson.7 The Court determined that the First Amendment protects 

those citizens who burn the U.S. flag in political protest from prosecution. In that case, Gregory Johnson was arrested for burning 

the U.S. flag in violation of Texas’ ‘‘Venerated Objects’’ law 8 during 

a demonstration outside of the Republican National Convention in 

Dallas. The Texas statute outlawed ‘‘intentionally or knowingly’’ desecrating a ‘‘national flag.’’ According to the statute, the term ‘‘desecrate’’ was defined to mean ‘‘to deface, damage or otherwise 

physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.’’ 9

The Court of Appeals for the Fifth District of Texas upheld Johnson’s conviction.10 Texas’ highest criminal court, the Court of 

Criminal Appeals, reversed the lower court decision, holding that 

the Texas law had been unconstitutionally applied to Johnson in 

violation of his First Amendment rights.11

The Supreme Court affirmed the Texas Court of Criminal Appeals ruling. The Court found that Johnson’s conduct constituted 

symbolic expression which was both intentional and overtly apparent. The Court determined that, since Johnson’s guilt depended on 

the communicative aspect of his expressive conduct, and was restricted because of the content of the message he conveyed, the 

Texas statute was ‘‘content-based’’ and subject to ‘‘the most exacting scrutiny test’’ outlined in Boos v. Barry.12 Further, the Court 

stated that, although the government has an interest in encouraging proper treatment of the flag, it may not criminally punish a 

person for burning a flag as a means of political protest.13 The 

Court determined that the Texas statute was designed to prevent 

citizens from conveying ‘‘harmful’’ messages, reflecting a government interest that violated the First Amendment principle that 

government may not prohibit expression of an idea simply because 

it finds the idea itself offensive or disagreeable.14

105

existing Federal law include: using the flag in ‘‘advertising of any nature,’’ or any person who ‘‘shall manufacture, sell expose for sale, or to pubic view, or give away or use for an purpose, 

any article or substance being an article of merchandise or a receptacle for merchandise or article or thing for carrying or transporting merchandise, upon which shall have been printed, 

painted, attached or otherwise placed a presentation of any such flag, standard, colors, or ensign, to advertise, call attention to, decorate, mark, or distinguish the article or substance on 

which so placed....’’ Although not enforceable under current precedents, these restrictions 

would become fully enforceable against businesses, individuals and any Member of Congress 

using the flag in a campaign ad, should the amendment be ratified. A formal representation 

of the exact flag is not required. The existing statute includes in the definition of ‘‘flag,’’ ‘‘any 

picture or representation of either, or any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, 

colors, or ensign of the United States of America or a picture or a representation of either, upon 

which shall be shown the colors, the stars and stripes, in any number of either thereof, or of 

any part or parts of either, by which the average person seeing the same without deliberation 

may believe the same to represent the flag....’’ 15Pub. L. No. 101–131 (1989). 16The Flag Protection Act of 1989 defined ‘‘flag’’ as ‘‘any flag of the United States, or any part 

thereof, make of any substance, of any size, in a form that is commonly displayed.’’ 18 U.S.C. 

700. 17The Washington, DC, protest occurred on the steps of the Capitol. 18 U.S. v. Eichman, 496 U.S. 310 (1990) (consolidating No. 89–1433, U.S. v. Eichman, 731 

F.Supp. 1123 (D.D.C. 1990), and U.S. v. Haggerty, 731 F.Supp. (W.D.WA. 1990)). 

In response to the Johnson ruling, Congress took steps to amend 

the 1968 statute to make it ‘‘content neutral’’ by passing the ‘‘Flag 

Protection Act of 1989.’’ 15 The Act prohibited flag desecration 

under all circumstances by removing the statutory requirement 

that the conduct cast contempt upon the flag. The statute also defined the term ‘‘flag’’ in an effort to avoid any latent First Amendment vagueness problems.16 Following passage of the Act, a wave 

of the flag burnings took place in over a dozen cities. The first 

Bush administration decided to test the Flag Protection Act by 

bringing criminal charges against protesters who participated in 

two incidents, one in Seattle and the other in Washington, DC 17

In both cases, the Federal district courts relied on Johnson, striking down the 1989 law as unconstitutional when applied to political 

protesters. 

The Supreme Court accepted jurisdiction of these cases (consolidated as U.S. v. Eichman, 496 U.S. 310 (1990)) and, in a 5–4 decision, upheld the lower Federal court rulings and struck down the 

Flag Protection Act of 1989.18 Again, the Court ruled that the government’s stated interest in protecting the status of the flag ‘‘as a 

symbol of our Nation and certain national ideals’’ was related to ‘‘the suppression of free expression’’ that gave rise to an infringement of First Amendment rights. The Court acknowledged that the 

1989 law, unlike the Texas statute in Johnson, contained no content-based limitations on the scope of protected conduct. However, 

the Court determined, the Federal statute was subject to strict 

scrutiny because it could not be enforced without reference to the 

message of the ‘‘speaker.’’ Since the Eichman decision, Congress repeatedly considered and 

rejected a proposed Constitutional amendment specifying that ‘‘the 

Congress and the states have the power to prohibit the physical 

desecration of the flag of the United States.’’

I. THE AMENDMENT WAS NOT SUBJECT TO EVEN

PRO FORMA HEARINGS

Historically, Congress has treated the Constitutional amendment 

process as a remedy of last resort. Although numerous amendments to the Constitution have been proposed, it has been a power 

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19 5 U.S.C. 3331. 20 H.Rpt. No. 109–lll at lll (2005)(Statement of Rep. F. James Sensenbrenner). 21Letter from Gregory T. Nojeim, Acting Director, and Terri A. Schroeder, Senior Lobbyist, 

American Civil Liberties Union, to Members of the U.S. House of Representatives (May 23, 

2005); Letter from Gary E. May, Veterans Defending the Bill of Rights, to Members of the U.S. 

House of Representatives (May 24, 2005); Letter from Veterans for Common Sense, to Members 

of the U.S. House of Representatives (May 24, 2005); Letter from former Captain Jeremy 

Broussard (U.S. Army) to Rep. F. James Sensenbrenner, Jr., and Rep. John Conyers, Jr. (May 

24, 2005); Letter from Maj. Robert A. Cordes (USAF, Ret.) to Members of the U.S. Senate 

(March 10, 2004); Letter from Bruce Fein, Esq. to Sen. Orrin Hatch and Sen. Patrick Leahy 

(June 7, 2004); Letter from Lt. Gen. Robert G. Gard, Jr. (U.S. Army, Ret.) to Sen. Orrin Hatch 

and Sen. Patrick Leahy (March 8, 2004); Letter from William C. Ragsdale (U.S. Navy, Ret.) to 

used rarely and with great care. Over more than 200 years, our 

Constitution has been amended only 27 times. If ratified, H.J. Res. 

10 would, for the first time in our Nation’s history, modify the Bill 

of Rights to limit freedom of expression. 

Notwithstanding the gravity of the issue, the majority has decided that this unprecedented departure from our nation’s constitutional heritage does not even merit the otherwise pro forma hearings that have become the rule since the 107th Congress. 

The Committee did not hold a single hearing on this momentous 

question. The Subcommittee on the Constitution held neither a 

hearing nor a markup. This reckless disregard for the future of our 

Bill of Rights is nothing less that a complete abdication of the Committee’s core duty under Rule X of the Rules of the House, and the 

oath every member takes on assuming office to ‘‘support and defend the Constitution of the United States against all enemies, foreign and domestic; [to] bear true faith and allegiance to the same 

. . . and [to] well and faithfully discharge the duties of the office 

on which I am about to enter....’’ 19

In an effort to give the Committee the opportunity of at least one 

hearing on this momentous issue, Mr. Conyers made a motion to 

postpone further consideration of the proposed amendment until 

June 15, 2005. Due to an erroneous ruling by the Committee’s Parliamentarian, the Chairman called a vote of the Committee without 

debate on the motion. The motion was defeated on a party line vote 

of 12 Ayes and 20 Nays. Mr. Nadler then offered a motion to postpone further consideration until June 16, 2005. Following debate, 

the motion was defeated on a party line vote of 11 Ayes and 19 

Nays. 

We believe that it is irresponsible to amend the Bill of Rights 

without a hearing, even if, as the Chairman believes, ‘‘having a 

hearing on this amendment will simply have everybody validating 

the arguments that have been made both pro and con in hearings 

that have been held before the subcommittee in previous Congresses. If there were new arguments, I’d like to hear them. But 

since there aren’t, we don’t need to have another hearing.’’ 20 We 

do not share the Chairman’s confidence that there is nothing to 

learn from a hearing. It is our job to approach important questions 

with open minds and seek information, not to shun it. It is certainly inappropriate for the majority to prejudge a question of this 

importance. 

In fact, the Committee received numerous written comments in 

opposition to the proposed amendment. These comments were 

made a part of the record during the markup. We sincerely doubt 

any member had the opportunity to review, much less consider, 

these helpful comments before voting.21

107

Sen. Orrin Hatch and Sen. Patrick Leahy (March 10, 2004); Letter from Steven E. Sanderson 

(U.S. Army veteran) to Members of the Senate Committee on the Judiciary (March 8, 2004); 

Letter from Lt. Gen. Claudia J. Kennedy (USA, Ret.) to Rep. F. James Sensenbrenner, Jr., and 

Rep. John Conyers, Jr. (May 24, 2005). 22The term ‘‘desecration’’ itself is highly revealing. Webster’s New World Dictionary defines ‘‘desecrate’’ as ‘‘to violate the sacredness of,’’ and in turn defines ‘‘sacred’’ as ‘‘consecrated to a 

god or God; holy; or having to do with religion.’’ Proponents of the amendment use similar language in defending the proposal. 23 H.Rpt. No. 109–lll at lll (2005) (statement of Rep. Chabot). 24 4 U.S.C. 8(k). 25 ‘‘[T]hose who are resentful because their interests are not accorded fair weight, and who 

may be doubly resentful because they have not even had a chance to present those interests, 

may seek to attain by radical changes in existing institutions what they have failed to get from 

the institutions themselves. Thus liberty of expression, though often productive of divisiveness, 

may contribute to social stability.’’ Kent Greenwalt, Speech and Crime, Am. B. Found. Res. J. 

645, 672–3 (1980). 

II. THE PROPOSED AMENDMENT WOULD ABRIDGE FREE EXPRESSION

Proponents of the amendment argue that desecration of the flag 

should not be considered speech within the meaning of First 

Amendment. Yet it is precisely the expressive content of acts involving the flag that the amendment would target. Indeed, it appears that proponents of the amendment sometimes wish to have 

it both ways. For example, an amendment offered by Rep. Scott replacing the word ‘‘desecration’’ with the word ‘‘burning’’ was rejected precisely because it would have prohibited the destruction of 

a flag in a purely content neutral manner.22 As Chairman Chabot 

observed: 

Limiting the amendment to only the burning of the flag rather 

than desecration would unduly limit the object and purpose of 

this resolution to give Congress the power to protect the flag 

from a range of physical acts of defilement or defacement. The 

word ‘‘desecration’’ was selected to give Congress the power to 

protect the flag from a range of physical acts of defilement or 

defacement. The word ‘‘desecration’’ was selected because of its 

broad nature encompassing many actions against the flag.23

That the criminal sanctions against flag burning in the Johnson

case, and the ones the sponsors of this amendment would presumably seek to enact upon its adoption, are directly related to the expressive content of the act are clear. Current law prescribes that 

‘‘[t]he flag, when it is in such condition that it is no longer a fitting 

emblem for display, should be destroyed in a dignified way, preferably by burning.’’ 24 It is clear then, that prohibitions against flag 

burning or ‘‘physical desecration’’ are fundamentally content-based. 

Burning a flag to demonstrate respect or patriotism is prescribed 

by current law. Should the proposed amendment pass, burning the 

flag to convey a political viewpoint of dissent or anger at the 

United States would become a crime. 

The Framers of the Constitution saw dissent and its protection 

as an affirmative social good.25 Limits on the manner of form of 

dissent must inevitably translate into limits on the content of the 

dissent itself. Limitations on the use of the flag in political demonstrations ultimately undermines the freedoms the flag represents. 

There can be no doubt that ‘‘symbolic speech’’ relating to the flag 

falls squarely within the ambit of traditionally protected speech. 

Our nation was borne in the dramatic symbolic speech of the BosVerDate jul 14 2003 11:31 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00107 Fmt 6604 Sfmt 6604 E:\HR\OC\HR131.XXX HR131
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26 283 U.S. 359 (1931) (State statute prohibiting the display of a ‘red flag’ overturned). Absent 

this decision, a State could theoretically have prevented its citizens from displaying the U.S. 

flag. 27 415 U.S. 94 (1972). 28 418 U.S. 405 (1974) (overturning convictions involving wearing a flag patch and attaching 

a peace sign to a flag). 29Texas v. Johnson, 491 U.S. at 397. 30See also, Note, The Supreme Court—Leading Cases, 103 Harv. L. Rev. 137, 152 (1989) (‘‘the 

majority opinion [in Johnson] is a relatively straightforward application of traditional first 

amendment jurisprudence’’); Sheldon H. Nahmod, The Sacred Flag and the First Amendment,

66 Ind. L.J. 511, 547 (1991) (‘‘Johnson is an easy case if well-established first amendment principles are applied to it’’). Survey results show that the majority of Americans who initially indicate support for a flag protection amendment oppose it once they understand its impact on the 

Bill of Rights. In a 1995 Peter Hart poll, 64 percent of registered voters surveyed said they were 

in favor of such an amendment, but when asked if they would oppose or favor such an amendment if they knew it would be the first in our Nation’s history to restrict freedom of speech 

and freedom of political protest, support plummeted from 64 percent to 38 percent. 31 U.S. ex rel Radich v. Criminal Court of N.Y., 385 F. Supp. 165, 184 (1974). 32PHILADELPHIA GAZETTE, Nov. 17, 1737, quoted in Levy, Legacy of Suppression 135 (1960).

ton Tea Party. Moreover, our courts have long recognized that expressive speech associated with the flag is protected speech under 

the First Amendment. 

Beginning in 1931 with Stromberg v. California 26 and continuing 

through the mid-1970’s with Smith v. Goguen 27 and Spence v. 

Washington, 28 the Supreme Court has consistently recognized that 

flag-related expression is entitled to constitutional protection. Indeed, by the time Gregory Johnson was prosecuted for burning a 

U.S. flag outside of the Republican Convention in Dallas, the State 

of Texas readily acknowledged that Johnson’s conduct constituted ‘‘symbolic speech’’ subject to protection under the First Amendment.29 Those who seek to justify H.J. Res. 10 on the grounds that 

flag desecration does not constitute ‘‘speech’’ are therefore denying 

decades of well understood law.30

While we deplore the burning of an American flag in hatred, we 

recognize that it is our allowance of this conduct that reinforces the 

strength of the Constitution. As one Federal court wrote in a 1974 

flag burning case, ‘‘[T]he flag and that which it symbolizes is dear 

to us, but not so cherished as those high moral, legal, and ethical 

precepts which our Constitution teaches.’’ 31

The genius of the Constitution lies in its indifference to a particular individual’s cause. The fact that flag burners are able to 

take refuge in the First Amendment means that every citizen can 

be assured that the Bill of Rights will be available to protect his 

or her rights and liberties should the need arise. 

H.J. Res. 10 will also open the door to selective prosecution based 

purely on political beliefs. When John Peter Zenger was charged 

with ‘‘seditious libel’’ in the very first case involving freedom of 

speech on American soil, his lawyer, James Alexander warned:

The abuses of freedom of speech are the excrescences of Liberty. They ought to be suppressed; but whom dare we commit 

the care of doing it? An evil Magistrate, entrusted with power 

to punish Words, is armed with a Weapon the most destructive 

and terrible. Under the pretense of pruning the exuberant 

branches, he frequently destroys the tree.32

The history of the prosecution of flag desecration in this country 

bears out these very warnings. The overwhelming majority of flag 

desecration cases have been brought against political dissenters, 

while commercial and other forms of flag desecration have been alVerDate jul 14 2003 11:31 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00108 Fmt 6604 Sfmt 6604 E:\HR\OC\HR131.XXX HR131
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33See Robert J. Goldstein, Two Centuries of Flagburning in the United States, 163 Flag Bull. 

65, 154 (1995). 34 Id. 35 Rotunda, Treatise on Constitutional Law: Substance and Procedure §20.49 at 352 (2d ed. 

1992). 36See Hearing on H.J. Res. 54, Proposing an Amendment to the Constitution of the United 

States Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th 

Cong., 2nd Sess. (April 30, 1997) [hereinafter 1997 House Judiciary Hearings] (statement of 

PEN American Center, Feb. 5, 1997) (‘‘To allow for the prosecution of [flag burners] would be 

to dilute what has hitherto been prized by Americans everywhere as a cornerstone of our democracy. The right to free speech enjoys more protection in our country than perhaps any other 

country in the world.’’). 

most completely ignored. An article in Art in America points out 

that during the Vietnam War period, those arrested for flag desecration were ‘‘invariably critics of national policy, while ‘patriots’

who tamper with the flag [were] overlooked.’’ 33 Whitney Smith, director of the Flag Research Center has further observed that commercial misuse of the flag was ‘‘more extensive than its misuse by 

leftists or students, but this is overlooked because the business interests are part of the establishment.’’ 34

Almost as significant as the damage H.J. Res. 10 would do to our 

own Constitution is the harm it will inflict on our international 

standing in the area of human rights. To illustrate, when the 

former Soviet Union adopted legislation in 1989 making it a criminal offense to ‘‘discredit’’ a public official, Communist officials 

sought to defend the legislation by relying on, among other things, 

the United States Flag desecration statute.35 Demonstrators who 

cut the communist symbols from the center of the East German 

and Romanian flags prior to the fall of the Iron Curtain committed 

crimes against their country’s laws similar to the this Act. Americans justifiably applauded these brave actions as political speech, 

understanding the injustice of the laws of those regimes. If we are 

to maintain our moral stature in matters of human rights, it is essential that we remain fully open to unpopular dissent, regardless 

of the form it takes.36 By adopting H.J. Res 10 we will be unwittingly encouraging other countries to enact and enforce other more 

restrictive limitations on speech, while impairing our own standing 

to protest such actions. 

III. AMENDING THE CONSTITUTION TO LIMIT THE BILL OF RIGHTS SETS

A DANGEROUS PRECEDENT

Adoption of H.J. Res. 10 will also create a number of dangerous 

precedents in our legal system. The Resolution will encourage further departures from the First Amendment and diminish respect 

for our Constitution. As President Reagan’s Solicitor General 

Charles Fried testified in 1990:

Principles are not things you can safely violate ‘‘just this once.’’

Can we not just this once do an injustice, just this once betray 

the spirit of liberty, just this once break faith with the traditions of free expression that have been the glory of this nation? 

Not safely; not without endangering our immortal soul as a nation. The man who says you can make an exception to a principle, does not know what a principle is; just as the man who 

110

37Measures to Protect the American Flag, 1990: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. (June 21, 1990) (statement of Charles Fried at 113). 38Legal philosopher Lon Fuller also highlighted this very problem over four decades ago: ‘‘We 

should resist the temptation to clutter up [the Constitution with amendments relating to substantive matters. In that way we avoid] . . . the obvious unwisdom of trying to solve tomorrow’s 

problems today. But [we also escape the] more insidious danger of the weakening effect [such 

amendments] have on the moral force of the Constitution itself.’’ L. Fuller, American Legal Philosophy at Mid-Century, 6 J.L. Ed. 457, 465 (1954), as cited in Proposed Flag Desecration 

Amendment 1995: Hearing Before the Subcomm. on Constitution of the Senate Comm. on the Judiciary, 104th Cong. (June 6, 1995) [hereinafter, 1995 Senate Judiciary Hearings] (statement of 

Gene R. Nichol). 39See Proposing an amendment to the Constitution of the United States authorizing the Congress and the States to prohibit the physical desecration of the flag of the United States, 1995: 

Hearing on H.J. Res. 79, Before the Subcomm. on Constitution of the House Comm. on the Judiciary, 104th Cong.(1995) [hereinafter, 1995 House Judiciary Hearings] (statement of Bruce Fein, 

at 1). 40See 1997 House Judiciary Hearings, supra note 35 (statement of Professor Norman Dorsen, 

New York University School of Law). 41See supra at 3–5. 42 Robert J. Goldstein, Two Centuries of Flagburning in the United States, 163 Flag Bull. 65 

(1995). 43 In his extensive survey of the history of American flag desecration law, Robert Goldstein 

writes that ‘‘[a]lthough the purpose of the [Flag Protection Act adopted by Congress in 1968] 

was to supposedly end flag burnings, its immediate impact was to spur perhaps the largest single wave of such incidents in American history.’’ Robert J. Goldstein, Saving ‘‘Old Glory’’: The 

History of the American Flag Desecration Controversy 215 (1995). 

says that only this once let’s make 2 + 2 = 5 does not know what 

it is to count.37

Amending the Constitution, particularly concerning issues which 

inflame public passion, represents a clear and present danger to 

our core liberties.38 Conservative legal scholar Bruce Fein emphasized this concern when he testified before the Subcommittee at 

1995 House Judiciary hearings: 

While I believe the Johnson and Eichman decisions were misguided, I do not believe a Constitutional amendment would be 

a proper response. . . . To enshrine authority to punish flag 

desecrations in the Constitution would not only tend to 

trivialize the Nation’s Charter, but encourage such juvenile 

temper tantrums in the hopes of receiving free speech martyrdom by an easily beguiled media. . . . It will lose that reverence and accessibility to the ordinary citizen if it becomes 

cluttered with amendments overturning every wrong-headed 

Supreme Court decision.39

Professor Norman Dorsen also points out in his testimony, ‘‘not 

including the Bill of Rights, which was ratified in 1791 as part of 

the original pact leading to the Constitution, only 17 amendments 

have been added to it, and very few of these reversed constitutional 

decisions of the Supreme Court. To depart from this tradition now 

. . . would be an extraordinary act that could lead to unpredictable 

mischief in coming years.’’ 40

IV. FLAG BURNING RARELY OCCURS

H.J. Res. 10 responds to a perceived problem—flag burning—that 

is all but nonexistent in American life today. Studies indicate that 

in all of American history from the adoption of the United States 

flag in 1777 through the Texas v. Johnson 41 decision in 1989 there 

were only 45 reported incidents of flag burning.42 Experience with 

prior efforts to criminalize flag desecration indicates that imposing 

such penalties have actually instigated flag burning.43

111

44 1995 House Judiciary Hearings, supra note 39 (statement of Bruce Fein at 1–2). 45Letter from General Colin L. Powell to Hon. Patrick Leahy, May 18, 1999. 46See 1997 House Judiciary Hearings, supra note 35 (statement of Jim Warner). These 

thoughts are echoed by Terry Anderson, a former U.S. Marine Staff Sergeant and Vietnam veteran who was held hostage in Lebanon. In testimony submitted at the same hearing, he wrote 

that ‘‘[H.J. Res. 54] is an extremely unwise restriction of every American’s Constitutional rights. 

The Supreme Court has repeatedly held that the First Amendment protects symbolic acts under 

its guarantee of free speech. Burning or otherwise damaging a flag is offensive to many (including me), but it harms no one and is so obviously an act of political speech that I’m amazed anyone could disagree with the Court.’’ (Id. statement of Terry Anderson).

In addition to the relative infrequency of flag burning, proponents of the measure cast the current state of the law as though 

Congress is impotent to protect the flag. However, even witnesses 

who disagree with the Supreme Court rulings in Johnson and 

Eichman have stated that the impact of those cases was not so 

broad. In 1995, Bruce Fein stated as much in subcommittee hearings: ‘‘Flag desecrations when employed as ‘fighting words’ or when 

intended and likely to incite a violation of law remain criminally 

punishable under the Supreme Court precedents in Chaplinsky v. 

New Hampshire and Brandenburg v. Ohio.’’ 44

V. THIS AMENDMENT IS THE WRONG WAY TO HONOR OUR VETERANS

It is a mistake to argue that this amendment honors the courage 

and sacrifice of our veterans. While we condemn those who would 

dishonor our nation’s flag, we believe that rather than protecting 

the flag, H.J. Res. 10 will merely serve to dishonor the Constitution 

and to betray the very ideals for which so many veterans fought, 

and for which so many members of our armed forces made the ultimate sacrifice. General Colin L. Powell echoed this sentiment:

The First Amendment exists to insure that freedom of speech 

and expression applies not just to that with which we agree or 

disagree, but also 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.45

Jim Warner, a Vietnam veteran and prisoner of the North Vietnamese from October 1967 to March 1973, has written:

The fact is, the principles for which we fought, for which our 

comrades died, are advancing everywhere upon the Earth, 

while the principles against which we fought are everywhere 

discredited and rejected. The flag burners have lost, and their 

defeat is the most fitting and thorough rebuke of their principles which the human could devise. Why do we need to do 

more? An act intended merely as an insult is not worthy of our 

fallen comrades. It is the sort of thing our enemies did to us, 

but we are not them, and we must conform to a different 

standard. . . . Now, when the justice of our principles is everywhere vindicated, the cause of human liberty demands that 

this amendment be rejected. Rejecting this amendment would 

not mean that we agree with those who burned our flag, or 

even that they have been forgiven. It would, instead, tell the 

world that freedom of expression means freedom, even for 

those expressions we find repugnant.46

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47Disabled American Veterans, To Maintain Essential Services for Veterans, Congress Must 

Provide Adequate Funding, (visited June 3, 2005) <http://www.dav.org/voters/legislative—talking—points.html>. 48 H.R. 2528, 109th Congress (2005).

There are many ways Congress can honor veterans. First and 

foremost, we can ensure that programs designed to protect them 

and provide them with much needed assistance are properly funded. During the Full Committee markup of H.J. Res. 10 on May 25, 

2005, Ms. Lofgren offered an amendment that would have provided 

for such proper programming and funding. Ms. Lofgren proposed 

that H.J. Res. 10 would not take effect until Congress guaranteed 

that veteran’s benefits promised to an individual in connection with 

that individual’s enlistment or induction in the Armed Forces could 

not be diminished after enlistment or induction. Unfortunately, 

this Committee, with this Administration and the Republican majority, have chosen to honor veterans with symbolic legislation, 

rather than tending to the needs of our veterans, our service men 

and women in the field, and their families. 

Yet this year’s budget short-changes our veterans in vital areas 

such as health care. The President’s proposed budget, providing $31.4 billion for appropriated veterans’ programs, is a staggering $338 million below the amount that the Congressional Budget Office estimates is needed to maintain services at the 2005 level. As 

the Disabled American Veterans observed:

The Administration’s budget for fiscal year (FY) 2006 seeks only $27.8 billion in appropriations for veterans’ medical care. 

This amounts to only a 0.4%—or less than one-half of 1 percent—increase over the FY 2005 appropriation in nominal, or 

constant, dollars, and therefore would be a reduction below the 

FY 2005 appropriation of $27.7 billion adjusted for inflation. 

The Administration’s budget would tighten funding for veterans’ medical care at a time when an influx of new veterans 

from the wars in Iraq and Afghanistan will place substantial 

new demands upon a system already unable to meet its mission. With the FY 2005 appropriation, the Department of Veterans Affairs (VA) had to maintain a freeze on new enrollments of lower priority group veterans seeking medical care, 

and even with that freeze, VA medical facilities across the Nation are already experiencing shortfalls in FY 2005 funding. 

These shortfalls prevent the hiring of new health care employees and new equipment purchases. The Independent Budget, 

coauthored by the Disabled American Veterans, AMVETS, the 

Paralyzed Veterans of America, and Veterans of Foreign Wars, 

estimates that Congress must appropriate $31.2 billion for veterans’ medical care in FY 2006 just to maintain current service 

levels.47

Rep. David Obey attempted to add an additional $2.6 billion to 

the FY 2006 Military Quality of Life and Veterans Affairs bill,48

but his amendment was rejected by the Appropriations Committee. 

As Rep. Obey argued: 

We also have a moral obligation to point out at every opportunity that the reason why veterans will not be receiving the 

health care they deserve is because of the misbegotten, ill-adVerDate jul 14 2003 11:31 Jun 17, 2005 Jkt 039006 PO 00000 Frm 00112 Fmt 6604 Sfmt 6604 E:\HR\OC\HR131.XXX HR131
113

49 H.Rpt. No. 109–94, at 95–96 (2005). 50 Roman Rolinick, Flag Amendment would put U.S. with Iran, China, UPI (July 1, 1989). 51 319 U.S. at 641.

vised budget that the Republican Congress passed just a few 

short weeks ago. That budget, which only one Republican 

member of the Appropriations Committee opposed, is the reason that veterans will not receive the health care that they 

were promised and that they deserve.49

CONCLUSION

Adoption of H.J. Res. 10 will undermine our commitment to freedom of expression and do real damage to the constitutional system 

established by our forefathers. If we amend the Constitution to outlaw flag desecration, we will be joining ranks with countries such 

as China, Iran and the former Soviet Union.50 We believe we have 

come too far as a nation to risk jeopardizing our commitment to 

freedom in such a fruitless endeavor to legislate patriotism. As the 

Court wrote in West Virginia State Board of Education v. Barnette: 

[The] ultimate futility of . . . attempts to compel coherence is 

the lesson of every such effort from the Roman drive to stamp 

out Christianity as a disturber of its pagan unity, the Inquisition as a means to religious and dynastic unity, the Siberian 

exiles as a means of Russian unity, down to the last failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating 

dissenters. Compulsory unification of opinion achieves only the 

unanimity of the graveyard.51

If we adopt H.J. Res. 10, we will be denigrating the vision of 

Madison and Jefferson. If we tamper with our Constitution, we will 

have turned the flag, an emblem of unity and freedom, into a symbol of intolerance. We will not go on record as supporting a proposal which will do what no foreign power and no flag burner has 

been able to do—limit the freedom of expression of the American 

people. 

AMENDMENTS OFFERED AT MARKUP

During the markup three amendments were offered by Democratic members: 

1. Scott Amendment 

Description of Amendment: The amendment that would have replaced the word ‘‘desecration’’ with the word ‘‘burning’’ in order to 

make the proposed amendment neutral with respect to a person’s 

expressive intent. 

Vote on Amendment: The amendment was rejected on a party 

line vote of 11 ayes and 19 nays. Voting aye: Mr. Conyers, Mr. 

Nadler, Mr. Scott, Mr. Watt, Ms. Lofgren, Ms. Jackson Lee, Mr. 

Meehan, Mr. Weiner, Mr. Schiff, Ms. Sanchez, and Mr. Van Hollen. 

Voting Nay: Mr. Coble, Mr. Smith, Mr. Gallegly, Mr. Chabot, Mr. 

Lungren, Mr. Jenkins, Mr. Cannon, Mr. Inglis, Mr. Hostettler, Mr. 

Green, Mr. Keller, Mr. Issa, Mr. Flake, Mr. Forbes, Mr. King, Mr. 

Feeney, Mr. Franks, Mr. Gohmert, and Chairman Sensenbrenner. 

114

2. Lofgren Amendment 

Description of Amendment: The amendment would have specified 

that the constitutional amendment would not take effect until the 

date on which Congress by law ensures that the veteran’s benefits 

promised to an individual in connection with that individual’s enlistment or induction in the Armed Forces cannot, after that enlistment or induction, be diminished. 

Vote on Amendment: Chairman Sensenbrenner sustained an objection to the amendment on the ground that it was not germane 

to the legislation. A motion to table an appeal of the ruling of the 

Chair was adopted on a party line vote of 17 ayes and 9 nays. Voting Aye: Mr. Coble, Mr. Smith, Mr. Gallegly, Mr. Goodlatte, Mr. 

Chabot, Mr. Lungren, Mr. Jenkins, Mr. Cannon, Mr. Inglis, Mr. 

Hostettler, Mr. Green, Mr. Keller, Mr. Issa, Mr. King, Mr. Franks, 

Mr. Gohmert, and Chairman Sensenbrenner. Voting Nay: Mr. Conyers, Mr. Nadler, Mr. Scott, Mr. Watt, Ms. Lofgren, Mr. Weiner, 

Mr. Schiff, Ms. Sanchez, and Mr. Van Hollen. 

3. Lofgren Amendment 

Description of Amendment: The amendment that would have substituted new language requiring that every flag of the United 

States manufactured in, or imported into, the United States after 

the effective date of the amendment must be manufactured out of 

flame-resistant material. 

Vote on Amendment: The Amendment was defeated by a voice 

vote.

JOHN CONYERS, JR. 

HOWARD L. BERMAN. 

RICK BOUCHER. 

JERROLD NADLER. 

ROBERT C. SCOTT. 

MELVIN L. WATT. ZOE LOFGREN. SHEILA JACKSON LEE. MAXINE WATERS. MARTIN T. MEEHAN. WILLIAM D. DELAHUNT. ROBERT WEXLER. ANTHONY D. WEINER. LINDA T. SA ́ NCHEZ. CHRIS VAN HOLLEN.

Æ