I am proud to be among this elite group of distinguished gentlemen who stand united in a common goal-passage of a flag-protection amendment. Sincerely, HAROLD L. "BUTCH" MILLER, To me and to many of my fellow Americans, we feel strongly, that to show disrespect or to desecrate our flag, the "Stars and Stripes" is an act that should not and cannot be allowed. I was prepared to die by defending our flag as did so many of my fellow Americans during time of War. The "Stars and Stripes" is a symbol of what our great country represents and stands for and we need to preserve the dignity and honor of our flag, the "Stars and Stripes". Thank you. HIROSHI MIYAMURA. To: the U.S. Senate Judiciary Committee, SALON NATIONAL LA BOUTIQUE, GENTLEMEN: I an writing as the National Chapeau of the Eight and Forty a subsidiary organization of the American Legion Auxiliary, consisting of 17,144 Partners (members). We are asking that when the measure to pass a constitutional amendment to protect our flag, comes before you that you unanimously approve the bill. I have just recently had the opportunity to help judge girls who are in their Junior year of High School to attend the American Legion Auxiliary Girls State. One of the questions we asked each applicant was how they felt regarding a bill to protect our flag and each and every girl said she felt that there should be a law protecting our flag from desecration. So for both the young people of our country and the older people who have fought to protect our country, we of the Eight and Forty ask you to support this bill. Yours in Service to our Country, WANDA S. NORTH, HARVARD LAW SCHOOL, Cambridge, MA, April 23, 1999. Senator ORRIN HATCH, Washington, DC. DEAR SENATOR HATCH: At the Judiciary Committee hearing on April 20, I regretted the last minute refusal by Randolph Moss to appear on a panel with other witnesses. For it meant that the rest of us had no opportunity to hear and respond to views of the Justice Department that the Acting Assistant Attorney General was going to present about the flag amendment. I have now read the statement he submitted to the Committee. I would like to take this opportunity, if I may, to respond to it. The statement is an exercise in scare rhetoric. It repeatedly cites supposed uncertainties, risks and dangers. It calls for "caution" and "stability." It is, however, itself built of shoddy reasoning and even misstatements of law. Let me go through some of the flaws one by one. (1) Mr. Moss says (page 2) that there is no need to protect the flag since "the last nine years have witnessed no outbreak of flag burning, but only a few isolated instances." I don't know how he uses the words "a few" or "isolated." More significantly, I don't see the relevance of this claim. As all who have been following this debate know, the need for flag protection has not been based on the number of recent incidents of flag desecration. (i) Rather, it has been based on the mistaken decision by five Justices of the Court to legitimate, such desecration. Putting the imprimatur of the Constitution on this behavior, the Justices in effect "authorized" and even "encouraged" it (as the Court itself has written in another context). Children growing up in the 1990's-unlike adults-tend to take flag burning for granted. If the Court's decision is not corrected, it follows that, over the next several decades, young adults and then old adults will simply forget that the flag was ever (i.e., for two centuries) regarded as special, as something is be respected by all, whatever our other disagreements. (ii) The flag, therefore, needs to be protected as a matter of principle. The statement by Mr. Moss that there is no need for flag protection is odd for another reason: It is at odds with the position of President Clinton. For, while the President has opposed an amendment, he has supported flag protection by statute. (2) Mr. Moss speaks (page 2) of “our traditional resistance, dating back to the time of the Founders, to resorting to the amendment process." This is peculiar since it was the generation of the Founders that crafted and ratified Article V and that added more amendments to the Constitution than any other generation! (3) Mr. Moss (page 2) claims that the flag amendment "would for the first time in our history limit the individual liberties protected by the Bill of Rights." This claim is as odd as it is familiar. For the point of the amendment is to restore the meaning that the Bill of Rights had for two centuries, until 1989. It was the 5–4 Court decision that changed its long-standing meaning. His claim is odd for another reason: Some time ago, the President endorsed a victim rights amendment to the Constitution. Though, at the time of his original endorsement, there was (as I recall) no agreed upon text to endorse, he clearly was proposing to "amend the Bill of Rights." We must conclude, then, that the President is not panicked by this particular slogan. (4) Mr. Moss argues (pages 3-4) that the Bill of Rights is "premised on an unclouded sense of permanence." Yet this argument is not only in some tension with the President's support for a victim rights amendment. More importantly, it seems (again) to miss the very point of the flag amendment-restoring the long-standing meaning of the First Amendment in order to vindicate its permanence, a permanence undermined by the 5-4 Court decisions in Johnson and Eichman. (5) On pages 4-5-beginning the central part of his statement-Mr. Moss starts through a "reading" of the flag amendment that, with respect, can only be called bizarre. (i) First, he says it "fails to state explicitly the degree to which it overrides other constitutional guarantees." No amendment other than the one specifically repealing the prohibition amendment does so! In any event, it's not even a question here since the flag amendment plainly would not touch any other guarantee. Instead, it would simply restore to the First Amendment its pre-1989 meaning with respect to one issue. (ii) Nevertheless, Mr. Moss goes on to say "it is entirely unclear how much of the Bill of Rights the proposed amendment would trump." "How much"? The answer is: None. (iii) Then, going into reverse for a moment, he suggests that a "literal" reading of the amendment would cause it not even to affect the Court's flag burning decisions! Fortunately, he quickly recognizes the patent absurdity of this observation. But its very absurdity demonstrates that his aim is not to "read" the amendment at all, just to smear it with any gob of mud, however weak. (iv) He concludes that "we are in uncharted territory." Either: he is truly confused and at a loss. (In this case, he ought to speak autobiographically.) Or: he is trying to create confusion among others. (In this case, he plainly has not even begun to succeed.) (6) Next (pages 5-7) Mr. Moss goes on to claim that the flag amendment might "authorize enactments that otherwise would violate the due process 'void for vagueness' doctrine." I really cannot imagine how he came up with this idea. He rests his case on what he says is the vagueness of words-"desecration" and "flag"—in the proposed amendment. But many, even most, words in significant provisions of the Constitution are vague by that standard. (Think of the words "commerce among the several states" or "general welfare.”) The point is that the "void for vagueness” doctrine has nothing to do with language in the Constitution. Rather, it has to do with language in statutes. The flag amendment is intended to validate a specific statute the Flag Protection Act of 1989-carefully drafted, with much expert advice, and enacted by a 91-9 vote in the Senate. When the Constitution employs general terms to grant Congress power, it is up to Congress to legislate in ways that satisfy the Due Process clause. Plainly, it showed that this can be done and did so with respect to prohibition of physical desecration of a flag of the United States. (7) Then, Mr. Moss returns (pages 7-8) to the strange idea that, under the flag amendment, Congress might "be freed from all, or only some, First Amendment constraints." The phrase "all or only some" is puzzling. He mentions just one: the doctrine articulated in the R.A. V. case that forbids government to proscribe only certain sub-categories of "proscribable" expressive activity-such as "fighting words" on the basis of their particular message or point of view. Obviously, this deeply-rooted doctrine would remain in place and would forbid Congress to punish only instances of flag burning by Democrats or by anti-war demonstrators. Yet Mr. Moss is "im mensely troubl[ed]" that the flag amendment might "override" R.A.V. so as to permit such laws or even override "the whole of the First Amendment"! I really don't know what to say to such scare rhetoric clothed as legal analysis-except that it is ridiculous and irresponsible. (8) At the end (pages 9-10) Mr. Moss reprises his various claims. He says he has "real doubts" whether his "difficulties and uncertainty" can be resolved by "even the most careful drafting". It appears that, if he had been at the Philadelphia Convention in 1787, he would have opposed any Constitution-the "uncertainties," the "drafting" problems, would have seemed overwhelming. Yet he goes on to speak of this "reverence for the Constitution" and (again) of his unwillingness to "tamper with the Bill of Rights" which, he says (again), should be "permanent and enduring." Yet his reverence in this instance appears to be focused not on the Constitution and Bill of Rights-which were products of a political process-but on the Court which "interprets," and "reinterprets" and thereby "amends” it, free of any direct responsibility to the people. Perhaps the problem, again, is that Mr. Moss is just unaware of the nature of the flag amendment-restoration to the First Amendment of its long-accepted and, it had been supposed, "permanent" meaning. Sincerely, Hon. ORRIN G. HATCH, RICHARD D. PARKER, Williams Professor of Law. RAOUL BERGER PROFESSOR OF LEGAL HISTORY, Chairman, Senate Judiciary Committee, DEAR SENATOR HATCH: You have asked me for my views on the proposed Flag Protection Amendment, and on whether a statute could be passed to protect the United States Flag from desecration, thus making a Constitutional Amendment unnecessary. I would assume that any bill that might be submitted would be essentially the same as S. 982, the "Flag Protection and Free Speech Act of 1997," which was introduced in the last Congress by Senators McConnell and Bennett, and embraced as well by Senator Lieberman. From time to time bills such as S. 982 attract some interest, and even though the Congressional Research Service (CRS) has taken the position that such a bill would pass constitutional muster, I disagree. There are many things in Constitutional law that are difficult or confused, as you know, but there is now one thing that is as certain as anything in Constitutional law can be, and that is that a bill such as S. 982, if passed, would be declared unconstitutional, and would be rejected by each and every federal or state court which considered it. Such a bill, given the current state of Constitutional law, would be not only a futile exercise in legislation, but an attempt to usurp a right, the right of Amending the Constitution, belonging to the American people, and would be an attempt thus to infringe on the right of the American people to determine for themselves the meaning of their Bill of Rights. As you know, back in 1990, when the Congress was considering earlier legislation to protect the American flag, and when the Congress was advised by several law professors (among them Harvard's Lawrence Tribe) that a statute could pass Constitutional muster, a few us (including Judge Robert Bork and me) explained as clearly as we could that the language in Texas v. Johnson, the 1989 case which found unconstitutional the Texas flag desecration statute, meant that no statute which sought to protect the flag from desecration could ever survive the strict scrutiny the Supreme Court said it would apply. We were proved correct, when, in 1990, in U.S. v. Eichman, the Supreme Court rejected as unconstitutional a Congressional attempt to get around the Texas v. Johnson decision by statute. Every flag desecration statute that has come before the courts since 1989 has been rejected as unconstitutional, most recently the Wisconsin statute, which the Wisconsin Supreme Court held in 1998, State v. Janssen, could not even be applied to convict a ruffian who defecated on the flag. The Wisconsin Supreme Court implied that only an Amendment to the United States Constitution could protect the flag in such a situation. In Johnson and Eichman, the majority of the United States Supreme Court made clear its belief, first that burning or desecrating the flag was an act of speech, and second, that any legislative measure designed to protect the flag from desecration would be viewed as "content discrimination," as implying government disapproval for a particular kind of speech. Such content discrimination, the Court pointed out, pursuant to its view of First Amendment interpretation, could only be justified for a "compelling governmental purpose." The only "compelling governmental purpose" the Court was willing to find in statutes preventing flag desecration, the Court made clear in Johnson and Eichman, was the protection of the flag's symbolic value to the nation. But the Court also made clear that the only "symbolic value" of the flag which it was willing to a allow a government to promote was its standing for the very freedom of speech which the court believed was exercised in the act of desecrating the flag! By this neat (one is tempted to say circular or specious) trick, the Court, in effect, was able to declare that those who desecrated the flag, by burning it, by shredding it, or even by defecating on it (as the Wisconsin decision reminds us), simply enhanced the symbolic value of the flag as a guarantee of free speech. Since the only permissible "compelling governmental purpose," according to the court, was enhanced by permitted flag desecration, any statute prohibiting flag desecration would be construed as weakening this compelling governmental purpose instead of strengthening it. There could thus be no "compelling governmental purpose" in preventing flag desecration, and accordingly, since the Court claims that a flag desecration statute would be "content discrimination," no flag desecration statute could pass Constitutional muster. The federal statute rejected in Eichman purported to be "neutral" as to the content of the message intended by the flag desecrator, but this was of no moment to the Eichman court, which looked at the legislative history of the measure, and the public sentiment which led to it, and simply declared that it was an impermissible attempt to meddle with the Court's conception of freedom of speech. The precise same fault would doom any bill similar to S. 982, but S. 982, and bills like it, have several other weaknesses which suggest their questionable provenance and which would render them unconstitutional. For example, in Section 2(a)(1) of S. 982 Congress would have declared that the flag "represents the values of liberty, justice and quality that make this Nation an example of freedom unmatched throughout the world." While this may well be correct, the Supreme Court, in construing the flag only to stand for the freedom of speech which it believes extends to the act of flag desecration itself, has given the flag a much narrower meaning. Since this is based on the Court's reading of the Constitution, Congress is without power to broaden it. Strange and strained and bizarre as this point is, it's inescapable after reading the Johnson and Eichman cases. More troubling, I think, is the extraordinary assertion in Section 2(a)(2) of S. 982, that clearly implies that the proposed Flag Protection Amendment (that it seeks to replace) would amend the Bill of Rights, and that the Constitution "should not be amended in a manner that could be interpreted to restrict freedom, a course that is regularly resorted to by authoritarian governments which fear freedom and not by free and democratic nations." This assertion is, among other things, a gratuitous insult to the men and women in the forty-nine state legislatures who have petitioned the Congress to pass the Flag Protection Amendment, and the roughly 80 percent of the American people who have consistently indicated their approval of the proposed Amendment. It is ridiculous and unseemly to suggest that their motive is to emulate authoritarian governments or that they "fear freedom." Equally disturbing is the fact that the decision on whether to amend the Constitution is not one on which Congress has the right to advise the American people, to whom that amendatory power ultimately belongs. It is true that one route to the Amendment goal starts with Congress, and the people's representatives have their say, but they are authorized to act as the people's agents, and not as their masters in the Amendment process. Moreover, for more than one hundred years the courts upheld flag desecration statutes, and such noble champions of the Bill of Rights as Justices Hugo Black and Earl Warren saw no conflict between the Bill of Rights and flag desecration statutes. A Constitutional Amendment which would once again permit flag desecration legislation would not amend the bill of Rights as Black and Warren understood it, it would simply correct, in the name of the people who are the Constitution's ultimate beneficiaries and guardians-an erroneous construction of the Constitution by a transient majority of the Supreme Court. This sort of correction of Supreme Court errors is a time-honored purpose of Constitutional Amendments. The proposed Flag Protection Amendment, as you know, is not some misguided attempt to amend the Bill of Rights. It is simply an opportunity for the American people to reaffirm the distinction between the speech protected by the First Amendment and outrageous, inflammatory, and harmful acts which have no such protection. The Supreme Court, unfortunately, got it wrong in Texas v. Johnson, and the proposed Flag Protection Amendment would simply set things right again. It would restore to the American people their right which Black and Warren recognized, their right to determine for themselves the meaning of their cherished and unique national symbol and how it ought to be protected. But even if the Supreme Court would not have a basis in its prior misreading of the First Amendment to reject as unconstitutional such statutory exercises as S. 982, it is clear that bills such as S. 982 would be unconstitutional because of their declared purpose, based on the so called "fighting words" doctrine (see S. 982, Section 2(a)(3), which limns a purpose to prevent "imminent violence or a breach of the peace"). Such a bill goes beyond the powers entrusted to Congress and unconstitutionally invades areas reserved to the "police power" of the states. There is no general grant to Congress of power to prevent violence or to guard against breaches of the peace. These are matters that have historically been entrusted to the state and local governments, those closest to the people. The basic Constitutional principle of Federalism, of dual sovereignty, reserves some areas of governance to the states and some areas (such as interstate commerce regulation and foreign affairs) to the federal government. In the important U.S. v. Lopez case, in 1993, the Supreme Court, in declaring unconstitutional the Federal Gun-Free School Zones Act, which made it a federal crime to possess a firearm near or in a school, held that this went beyond Congress's powers and invaded the domain of the states. In the Court's 1997 term the court released several other decisions which underscored the importance of Federalism to our system, and recently some lower federal courts have even declared unconstitutional (on federalism grounds) the federal legislation which sought to impose penalties for violence against women. There is no doubt that the logic of Lopez would render unconstitutional a national "breach of the peace" statute such as S. 982. Such statutory attempts are unworthy and now clearly unconstitutional pieces of legislation. They purport to be conceived to protect our cherished national symbol, but they wrongly denigrate the efforts of those who support the Flag Protection Amendment. They accuse them, as for example, Senator Lieberman did in his statement in support of S. 982, of seeking to alter the First Amendment and of wanting to expand the power of government at the expense of individual liberty. This betrays a sad and fundamental misunderstanding of the nature of liberty in this country. Individual freedoms are, of course, important, and it may well be that the American political system is the most admirable because it offers the most protection to individual liberty. But it remains true, as our Framers knew, that liberty cannot exist without a foundation in civility and order, and there are times when outrageous actions are not manifestations of liberty, but rather of license, which undermines the basis of civilized order itself. In the past year, which has seen the country roiled by the effects of license in the Oval Office itself, we have seen extraordinary proof of the need to keep license checked. Our Framers tried to strike a balance between liberty and license, and by doing so to establish "domestic tranquility." The Constitution and its attendant Bill of Rights recognized that the most important liberty was the liberty of the American people themselves to exercise popular sovereignty and to pass their own laws to promote both order and liberty. Striking this delicate balance between liberty and order is a difficult task, and one entrusted by the Constitution, in the Article V Amendment process, to the people themselves. In returning us to the balance struck for the century before Texas v. Johnson, the proposed Flag Protection Amendment would not amend or in any way alter the Bill of Rights, it would instead solidify the foundation of American liberty itself. I would be happy to discuss the Flag Protection Amendment further at your convenience. Yours sincerely, STEPHEN B. PRESSER. NONCOMMISSIONED OFFICERS ASSOCIATION Hon. ORRIN G. HATCH, Washington, DC. DEAR SENATOR HATCH: The Noncommissioned Officers Association of the USA (NCOA) has joined with the Citizens Flag Alliance (CFA) to support the efforts of many in Congress to pass a Flag protection amendment. NCOA's 148,000 members are solidly committed to the passage of Flag protection legislation and have placed the issue among their very highest legislative priorities. In this regard NCOA is delighted with the recent introduction of S.J. Res 14 in the U.S. Senate. |