Last July 18, 1998, in Couer D'Alene, ID, white supremacists held a "100-Man flag parade." They marched carrying American flags and Nazi banners side by side. The local residents turned the tables on the demonstrators by raising $1,001 for each minute of the white supremacists' march, and then they donated that money to human rights organizations. The positive examples of the good citizens from across this country show that our America, the America for which our soldiers and veterans have sacrificed so much over the last 200 years, remains strong.

It can be painful that the Klan and others try to associate themselves with the principles of our Nation by displaying the flag, but therein lies the greatness of America. All voices, however hateful and obnoxious, can be heard, but it is the strength of ordinary citizens, those who spontaneously sing "God Bless America" and the national anthem, that wins the debate. The first amendment works. Freedom works. And we should celebrate that, not erode it. Thank you, Mr. Chairman. I will put my whole statement in the record.

The CHAIRMAN. We will put the whole statement in the record, without objection.

[The prepared statement of Senator Leahy follows:]

PREPARED STATEMENT OF SENATOR PATRICK J. LEAHY

The Senate is, again, being asked to amend the Constitution of the United States-to change the fundamental law that binds this nation together. I hope and expect that we all appreciate that we are undertaking one of the gravest of our legislative responsibilities. We are being asked to alter the inalienable rights of Americans, now and for future generations. We are handling a most precious trust. We would approach this task with dignity and decorum, with respect for differing points of view and with recognition of the patriotism of Americans on both sides of this question.

A few weeks ago I traveled to Cuba to begin a dialogue with the Cuban government and the Cuban people on a range of issues, with a view toward finding a way to break down the barriers that have divided our countries for half a century and that are no longer in the best interest of the United States.

One of the issues I raised with Castro was his deplorable record on human rights. The people of Cuba are still denied fundamental freedoms and rights that are recognized throughout the world, including the rights of free speech and an open press. A few weeks before I arrived in Cuba, four human rights activists were convicted on charges of "sedition." Their "crime" was criticizing Cuba's one-party system and calling for peaceful democratic change. For this, they were sentenced to prison terms ranging from three-and-a-half to five years. And the trial was held in virtual secrecy.

The trial of the four dissidents was just the most recent example of Cuba's ongoing campaign to stifle free speech and independent expression. In February, the Cuban National Assembly passed a law that threatens Cubans with penalties of up to 20 years for a broad range of activities, including possessing or disseminating "subversive" literature, or “collaborating" with the United States government or foreign media.

Cuba also has a law making it a crime to offend or show contempt for the national flag.

I spoke to Castro about his crackdown on dissidents and independent journalists, and how it only serves to further alienate our countries. I explained how things work in the United States and that free expression is the hallmark of a free society. You cannot force people to think alike by suppressing independent thought. You cannot force people to be patriotic by denying them the right to speak.

We should think about the human rights situation in Cuba-in China-in Yugoslavia as we consider whether, for the first time ever, we are going to restrict the rights enjoyed by Americans under the First Amendment.

Supporters of this proposed amendment insist that we can draw the line at this amendment. I am not so sure. If we prohibit people from criticizing the government

by burning a flag, why not stop them from burning a cross, or a bible, or a copy of the Constitution? Why not prohibit other forms of political expression?

Make no mistake about it: this proposal is directed at restricting political speech. We are being asked to say that it is okay for the United States government to suppress at least some political expression merely because we find it offensive. And when governments like that of Cuba or China decide that certain forms of political expression are offensive and should be prohibited, when they prosecute their prodemocracy dissidents or jail journalists who criticize their leaders, what will we say then? If it is okay for the United States to criminalize an unpopular form of political expression why should other countries not do the same with respect to expression they find offensive?

The United States is the most powerful country in the world in large measure because it is the most free. We are a world leader in the struggle for human rights, including the right to freedom of speech for all. This administration and past administrations, Democrat and Republican, have strongly criticized foreign governments that limit free speech, censor the press and suppress other fundamental human rights. If we succumb to the temptation of silencing those who express themselves in ways that we find repugnant, what example do we set for ourselves and others around the world?

Americans respect their flag. No change to the Constitution is necessary to establish respect for the flag or for the values of freedom and responsibility that this nation holds so dear. All of us here today respect the flag. We will tomorrow. And in all of the hearings, all of the debate that we have devoted to this topic over the past eight or nine years, not one single person has testified that they respect the flag less because a protester has burned it, sewed it in the seat of his pants, or misused it in a work of what they say is "art."

Not one single person has testified that they love our country less because Americans are free to express themselves in this manner, a way that is repugnant to many of us. If our love of country or respect for its fundamental principles was so weak that it could be diminished by such an act, that would be cause for alarm. We know that it is not.

The truth is just the opposite. On those rare occasions when we seen someone disrespect our flag the overwhelming majority of Americans are reminded of how much we love that flag, how much we love our country, how much we cherish freedom. We are reminded of what unifies us and what this country stands for and the values it honors and fights for here and around the world.

I have no lack of faith in the American people and in their love and respect for the flag, this country and others' rights of expression. We respect and love our country for what it is, not because we are told to respect it. We do not love our country because we would be punished if we did not.

A constitutional amendment would do nothing to increase actual national unity. If anything, it would erode our unity by eroding the Bill of Rights, which is the glue that binds us together as a nation.

The Founders had greater faith. Thomas Jefferson, in his first inaugural address, given at a time when the nation was bitterly divided, spoke loud and clear for tolerating even the most extreme forms of political dissent: "If there be any among us who would dissolve the Union or *** change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it."

As Justice Louis Brandeis observed, "those who won our independence eschewed silence coerced by law-the argument of force in its worst form." Our faith in free speech is grounded ultimately in a confidence that the truth will prevail over falsehood.

We should honor our veterans. In my view we should start by answering Lincoln's call "to care for him who shall have borne the battle, and for his widow, and his orphan." We should honor our veterans with substance rather than symbols. When it comes to crunch time for veterans' needs, too often of late veterans are denied their due. Last year the Senate voted to divert $10.5 billion from critical veterans funding to help pay for extravagant highway spending programs. The Senate raided veterans' programs in the IRS reform legislation and, again, in the VA/HUD Appropriations Bill. If only a few more Senators had voted with us to support veterans, we could have prevailed and $10.5 billion in funding for veterans would have been assured.

The Senate has squandered a number of opportunities to increase the funds in the Veteran Administration's medical care account. Hospitals are seeing more patients with less funding and staff, and it can now take months for veterans to get doctor's appointment. It is not mere symbolism to fund those hospitals.

It is estimated that a third of all homeless people in this country are American veterans. Many of those people may be suffering from post-traumatic stress disorder or other illnesses relating to their military service.

We all know that with the end of the Cold War, military bases are closing. Military retirees who relied on the base hospitals for space-available free medical care are losing access to care. Many service members retired near military bases specifically so that they could enjoy the free medical care we promised them, but now they have to find health care in an inhospitable marketplace.

I saw this in Vermont recently, where we have had to fight to keep adequate funding for the only veteran's hospital in the state. It has been on the verge of closing down the in-patient surgery service, which would mean that many elderly Vermont and New Hampshire veterans would be forced to travel to Boston for medical care, and many of them just cannot.

This sort of thing is happening all across the country. For the last three years, the health care funding for veterans has been flat, while costs have risen dramatically. We could give military retirees access to the Federal Employee Health Benefit program that all other federal employees, including Senators, enjoy. The Senate has not done so.

Instead, in 1996, we changed the immigration laws to expedite deportation proceedings by cutting back on procedural safeguards and judicial review. The zealousness of Congress and the White House to be tough on aliens has snared American veterans, permanent residents who have spilled their blood for this country. As the INS prepares to deport them for even the most minuscule criminal offenses, we have not even been kind enough to thank them for their service with a hearing to listen to their circumstances. I heard yesterday that we may be obtaining some semblance of justice for one of those former servicemen, and I am honored if my intervention played a part in that matter for the Ramirez family.

If we fail to meet the concrete needs of American veterans and try to push them aside with symbolic gestures, we will have failed in our duty not only to our veterans, but to our country as well.

Our country's historic response to dissent is not to ban speech that we find offensive. That is the response of weakness. The American people respond with strength, with responsible actions that demonstrate respect and allegiance, freely given.

Last year, when the Ku Klux Klan decided to hold a rally in Jasper, Texas, where an African American had been brutally tortured and murdered in a hate crime that shocked the conscience of us all, the good citizens of Jasper, led by their African American mayor, let the Klan speak. They let them march, and they even let them wave American flags. The good citizens of Jasper rejected the Klan without suppressing their speech and the Klan slithered out of town.

Last July 18, 1998, in Couer D'Alene, Idaho, white supremacists held a "100-Man flag parade" and marched carrying American flags and Nazi banners side by side. The local residents turned the tables on the demonstrators by raising $1,001 for each minute of the white supremacists' march, money for donations to human rights organizations. The positive examples of the good citizens from across this country show that our America, the America for which our soldiers and veterans have sacrificed so much over the last 200 years, remains strong.

It can be painful that the Klan and others try to associate themselves with the principles of our nation by displaying the flag, but therein lies part of the greatness of America. All voices, however hateful and obnoxious, can be heard, but it is the strength of ordinary citizens, those who spontaneously sing "God Bless America" that wins the debate. The First Amendment works. Freedom works. We should celebrate it, not erode it.

The CHAIRMAN. It has been brought to my attention we have another Medal of Honor winner in our audience. Would Rudolfo Hernandez stand, please? [Applause.]

Senator LEAHY. Mr. Chairman, if I could just interject-oh, I am sorry. You wanted to say something.

The CHAIRMAN. Rudolfo is a distinguished veteran of the Korean Conflict. Let me just mention, since I failed to mention him the first time around, let me just mention what Rudolfo did.

His platoon, in defense of positions on hill 420, came under ruthless attack by numerically superior and fanatical hostile forces accompanied by heavy artillery, mortar, and machine gun fire which inflicted numerous casualties on the platoon. His comrades were

forced to withdraw due to lack of ammunition, but Corporal Hernandez, though wounded in an exchange of grenades, continued to deliver deadly fire into the ranks of the on-rushing assailants until a ruptured cartridge rendered his rifle inoperative.

Immediately leaving his position, Corporal Hernandez rushed the enemy, armed only with a rifle and bayonet. Fearlessly engaging the foe, he killed six of the enemy before falling unconscious from grenade, bayonet, and bullet wounds, but his heroic action momentarily halted the enemy advance and enabled his unit to counterattack and retake the lost ground.

The indomitable fighting spirit, outstanding courage, and tenacious devotion to duty clearly demonstrated by Corporal Hernandez reflect the highest credit upon himself, the infantry, and the U.S. Army. So we are really proud to have you here, Corporal. [Applause.]

Senator LEAHY. Mr. Chairman, I was just going to say before, one of the most cherished memories I have is the 40th anniversary of D-Day. President Reagan was going to be in Normandy, and he asked then-Majority Leader Senator Bob Dole, our good friend, and I to lead a delegation to represent him in Italy for the celebrations. On our plane were several Congressional Medal of Honor winners. I don't recall all the things that happened during the various celebrations. As you know, you have been at those various things. They become almost a blur going from place to place. I remember virtually every second of the time spent in the airplane with the Medal of Honor winners, both over and back. I made a lot of notes on them, and Senator Dole has visited with some of them since. They were kind enough to give me a set of cuff links and a pin with the symbol of the Congressional Medal of Honor. I have kept those in a special place. I would never wear them because I feel that is something only those who have earned it should wear. But I thought what an honor it was to be there with them.

It was an extraordinary, extraordinary time, and you probably have heard Bob talk about that trip.

The CHAIRMAN. Yes.

Senator LEAHY. I know it meant a lot to him, too.

The CHAIRMAN. Well, thank you, Senator.

We will turn to the chairman of the Constitution Subcommittee, Senator Ashcroft, and then I am going to turn to Senator Feingold, who is the ranking member, for the final comments from the dais here. And then we are going to turn to our witnesses.

STATEMENT OF HON. JOHN ASHCROFT, A U.S. SENATOR FROM THE STATE OF MISSOURI

Senator ASHCROFT. Thank you and good morning. I want to thank Chairman Hatch for holding this hearing and thank him for his leadership on what I consider to be this important issue.

We plan to mark up the proposed flag amendment in subcommittee tomorrow. Of course, this is the full committee. And this morning's hearing should set the stage for that markup by providing an opportunity to examine our Nation's history, which is rather substantial, of safeguarding the flag and give us an opportunity to discuss the necessity of continuing to protect the flag in the years ahead.

In exploring the wisdom of amending the Constitution to protect the flag, it is important to begin with the rich role that the flag has played in our country's history. Throughout our history, the flag has held a special place in the hearts and minds of Americans. Although its appearance has changed, reflecting the growth of the Nation, its meaning has not changed. The flag represents no particular perspective, political agenda, or religious belief; rather, it symbolizes an ideal, not just for Americans but for all people who honor the great American experiment. It represents both the shared ideal of freedom and the continuing struggle for this precious liberty.

In the words of the Chief Justice of the United States in his dissenting opinion in Texas v. Johnson, and I am quoting now,

The American flag throughout more than 200 years of our history has come to be the visible symbol embodying our Nation. 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. Not only has the flag played an important role in our Nation's history, but we also have a long traditional of protecting the flag from desecration. The first laws providing special protections for the flag date back over 100 years, and there are earlier reported incidents in which desecration of the flag was treated as an act of war or treason. Many of the other protective State laws were based on the Uniform Flag Act of 1917.

None of the sponsors of these laws that previously have protected our flag felt that the laws ran afoul of the first amendment. Indeed, the Supreme Court itself upheld the Nebraska statute preventing commercial use of the flag in 1907 in Halter v. Nebraska. By the time of the Supreme Court's decision in Texas v. Johnson, 48 of the 50 States made burning the flag a criminal offense.

Now, this long tradition of flag protection is important for at least two reasons. First, it demonstrates that citizens of this country have long thought it important to incorporate respect for the flag into the governing law. Second, it makes it awfully difficult for me to believe that this legislative practice, which dates back a full century, somehow violated the Constitution all along. However, a majority of the Supreme Court reached that conclusion, finding both State and Federal flag protection statutes to be incompatible with the first amendment.

Now, this proposed amendment would restore the people's will and capacity to protect the flag, and it would reaffirm a power Congress enjoyed until the beginning of this decade. I do not believe this action threatens the important values of the first amendment. As Justice Stevens noted in his dissent in Texas v. Johnson, and I am quoting, "The concept of desecration does not turn on the substance of the message the actor intends to convey but, rather, on whether those who view the act will take serious offense."

Likewise, the act of desecrating the flag does not have any content in and of itself. The act takes meaning and expresses conduct only in the context of the true speech which accompanies the act, and that speech would remain unregulated.