American people to vote on this amendment, we will not only affirm the right to speak, write, and vote one's opinions, but also to protect the love of those freedoms that our forefathers died for.

Now, before I turn to Senator Leahy for his opening statement, I want to introduce some very special guests in the audience. We are very fortunate to have with us a number of recipients of this country's highest award for courage and bravery in the field of battle. As I call your name, gentlemen, please stand.

The members of the Medal of Honor recipients of the flag here with us today include: from the State of Washington, General Pat Brady, a distinguished Vietnam veteran, if you will stand and remain standing; from the State of New Mexico, Mr. Hiroshi Miyomura, a distinguished veteran of the Korean Conflict; from the State of West Virginia, Mr. Woody Williams, a distinguished veteran of the Battle of Iwo Jima; from the State of Colorado, Mr. Raymond Murphy, a distinguished veteran of the Korean Conflict; and from my own home State of Utah, Mr. George Whalen, a distinguished veteran of the Battle of Iwo Jima.

We are really honored to have all of you here today, and we are especially honored to have you support this amendment.

These bravest of Americans support this amendment to protect the physical integrity of this country's greatest symbol, and I think we owe these gentlemen a hand in gratitude for their service.

[Applause.]

The CHAIRMAN. At this point, I would like to enter into the record the statements of Senators Thurmond and Sessions.

[The prepared statements of Senators Thurmond and Sessions follow:]

PREPARED STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA

Mr. Chairman: I am very pleased that we are considering S.J. Res. 14, the Constitutional amendment to protect the flag of the United States. I commend you, Mr. Chairman, for the leadership you have provided in our ongoing effort to enact this most essential amendment.

We have considered this issue in the Judiciary Committee and on the Senate Floor many times in the past decade. I have fought to achieve Constitutional protection for the flag ever since the Supreme Court first legitimized flag burning in the case of Texas v. Johnson in 1989.

In our history, the Congress has been very reluctant to amend the Constitution, and I agree with this approach. However, the Constitution provides for a method of amendment, and there are a few situations where an amendment is warranted. This is one of them.

Some have said we should not protect the flag because totalitarian regimes like China protect theirs. The United States is not the only democracy that has protected the flag. Others such as the Democratic Republics of Germany, Belgium, and Denmark protect the flag.

The only real argument against this amendment is that it interferes with an absolute interpretation of the free speech clause of the First Amendment. However, restrictions on speech already exist through Constitutional interpretation. In fact, before the Supreme Court ruled on this issue, the Federal government and the States believed that flag burning was not Constitutionally-protected speech. The Federal government and almost every state had laws prohibiting desecration that were thought to be valid before the Supreme Court ruled otherwise in 1989.

During moments of despair and crisis in our history, our people have turned to the flag as a symbol of National unity. It represents our values, ideals and proud heritage.

American soldiers have put their lives on the line to defend what the flag represents. We have a duty to honor their sacrifices by giving the flag the protection it once had, and clearly deserves today.

Flag burning is intolerable. We have no obligation to permit this nonsense. Have we focused so much on the rights of the individual that we have forgotten the rights of the people?

We cannot allow ourselves to be deterred in our efforts to protect the flag. I am firmly committed to this fight until we are successful.

PREPARED STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA

I would like to begin by thanking the Chairman of this Committee, Senator Hatch, for calling this hearing today to discuss the legislation he has introduced which, if passed by two-thirds of the House and Senate and ratified by three-quarters of the States, would amend the United States Constitution so that Congress is expressly given the authority to prevent the physical desecration of the American flag. I am proud to be a cosponsor of this legislation, and I appreciate the impressive panel of witnesses that has assembled to discuss this issue.

At the outset, let me say that I do not take proposals to amend the Constitution lightly. I believe that one of the strengths of our Constitution is that it has been a relatively fixed and stable document since its ratification in 1789. I believe the fact that it has been amended only 27 times in its history is testament to the strength and clarity of vision our Founding Fathers had for this Republic. In fact the stability and consistency of our Constitution over time has, in my opinion, helped safeguard the rights and protections afforded to every citizen of this country. It is when Constitutions are made subject to sweeping change, whether through constant amendment or activist and excessive judicial interpretations, that rights begin to be jeopardized and the text of this grand governing document begins to lose its meaning.

This issue provides us with an important opportunity to use the legitimate and Constitutionally provided amendment process. The amendment process, for those who love the Constitution, is the way to change the document. It should not be changed simply by judicial re-interpretation of the words. As I see it, we are here today because of a striking judicial misinterpretation of the Constitution by the Supreme Court and only a Constitutional amendment can fix the problem. I believe that the United States Supreme Court, in reversing over 200 years of precedent, was wrong when in 1989 it decided by a 5-4 vote in the Texas v. Johnson case that the 1st Amendment granted Constitutional protection to those who wished to burn American flags. It is clearly a stretch to hold, as that court did, that the burning of the flag was conduct “sufficiently imbued with elements of communication" to implicate the first amendment. Rather, I think the dissenters in this case had it right. On this point the words of Chief Justice Rehnquist, writing in dissent, were especially eloquent. The Chief Justice wrote:

Far from being a case of "one picture being worth a thousand words," flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea but to antagonize others. Only five years ago we said in City Council of Los Angeles v. Taxpayers for Vincent that "the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places." The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest—a form of protest that was profoundly offensive to many-and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy. (491 U.S. 432)

Additionally, the Chief Justice pointed out the ultimate, tragic irony caused by the majorities decision. He wrote:

The Court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight.

I think that this is a somber point, and one upon which the members of this Committee should reflect. It has relevance not only for all of those who have bravely answered their countries call in the past, but also for all of those men and women who are, even as we speak, risking their lives in service to this country throughout the world.

Is this amendment necessary? I say. Yes, it is, for three reasons. First, good and decent Americans throughout this country care about this subject very deeply. Through their letters and phone calls they have urged Congress to enact measures to protect the flag. Second, this amendment will do no harm to our notions of free speech but will express our reverence for our unique symbol of freedom, the American flag. Finally, it will provide the people of the United States with the opportunity to use the legitimate and Constitutionally provided amendment process to express themselves, through State ratification, on this important issue.

That concludes my opening statement. I would like to express my thanks to all of the witnesses who will be testifying today, and I look forward to hearing your statements.

The CHAIRMAN. Now, we had planned to hear from the Department of Justice today. They informed us of their desire to provide testimony at today's hearing on Friday afternoon. I have been informed that, despite our effort to accommodate them by permitting them to testify first, they have pulled their witness, Acting Assistant Attorney General Randolph Moss. The Department believes that it should have its own panel, and we will grant that.

I would note that the Department's own written testimony concedes that the testimony they would have provided today is substantially similar to the testimony given in 1995. Nevertheless, I believe we need to hear from the Department of Justice. It is unfortunate that they could not make it today, and I fail to see why the Department really can't have Mr. Moss appear on the same panel with all of you, with leaders like General Brady, a Medal of Honor recipient. And setting aside the fact that the Department has testified on panels with other witnesses on several occasions over the years, I plan to accommodate the Department, if at all possible, by giving them another opportunity to testify before the committee because we will have a subsequent hearing so that Senator Glenn and other members of the Senate and House will be able to testify. So, without objection, we will make the Department's testimony part of the record today, and let me just say that I am disappointed that they couldn't be here, but I think that was something that we should have remedied before now.

[The prepared statement of Mr. Moss follows:]

PREPARED STATEMENT OF RANDOLPH D. Moss

Mr. Chairman, and Members of the Committee:*

As you know, in 1989 the Supreme Court held in Texas v. Johnson 1 that a State could not, consistent with the First Amendment, enforce a statute criminalizing flag desecration against a demonstrator who burned an American flag. In 1990, in United States v. Eichman,2 the Court held that the First Amendment prohibited the conviction of demonstrators for flag burning under a federal statute that criminalized mutilating, defacing, or physically defiling an American flag.

For nine years, then, the flag has been left without any statutory protection against desecration. For nine years, one thing, and only one thing, has stood between the flag and its routine desecration: the fact that the flag, as a potent symbol of all that is best about our Country, is justly cherished and revered by nearly all Americans. Chairman Hatch has eloquently described the flag's status among the American people:

*In 1995, Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, provided substantially similar testimony to the Subcommittee on the Constitution, Federalism, and Property Rights of the United States Senate Judiciary Committee regarding S.J. Res. 31, A Bill Proposing an Amendment to the Constitution of the United States to Grant Congress and the States the Power to Prohibit the Physical Desecration of the Flag of the United States.

1491 U.S. 397 (1989).

2496 U.S. 310 (1990).

The American flag represents in a way nothing else can, the common bond shared by a very diverse people. Yet whatever our differences of party, politics, philosophy, race, religion, ethnic background, economic status, social status, or geographic region, we are united as Americans. That unity is symbolized by a unique emblem, the American flag.3

It is precisely because of the meaning the flag has for virtually all Americans that the last nine years have witnessed no outbreak of flag burning, but only a few isolated instances. If proof were needed, we have it now: with or without the threat of criminal penalties, the flag is amply protected by its unique stature as an embodiment of national unity and ideals.

It is against this background that one must assess the need for a constitutional amendment (S.J. Res. 14) that would provide Congress with the "power to prohibit," and presumably impose criminal punishment for, the "physical desecration" of the American flag. Such an amendment would run counter to our traditional resistance, dating back to the time of the Founders, to resorting to the amendment process. Moreover, the amendment, if passed, would for the first time in our history limit the individual liberties protected by the Bill of Rights, adopted over two centuries ago. Whether other truly exigent circumstances justify altering the Bill of Rights is a question we can put to one side here. For you are asked to assume the risk inherent in crafting a first-time exception to the Bill of Rights in the absence of any meaningful evidence that the flag is in danger of losing its symbolic value. Moreover, the proposed amendment before you could create legislative power of uncertain dimension to override the First Amendment and other constitutional guarantees. For these reasons, the proposed amendment-and any other proposal to amend the Constitution in order to punish isolated acts of flag burning-should be rejected by this Congress.

I.

At the outset, and out of an abundance of caution, I would like to emphasize that the Administration's view on the wisdom of the proposed amendment does not in any way reflect a lack of appreciation for the proper place of the flag in our national community. The President always has and always will condemn in the strongest of terms those who would denigrate the symbol of our Country's highest ideals. The President's record and statements reflect his long-standing commitment to protection of the American flag, and his profound abhorrence of flag burning and other forms of flag desecration.

To conclude that flag desecration is abhorrent and that it should be resoundingly and unequivocally condemned, however, is not to conclude that we should for the first time in our Nation's history cut back on the individual liberties protected in the Bill of Rights. As James Madison observed at the founding, amending the Constitution should be reserved for "great and extraordinary occasions."4 This caution takes on unique force, moreover, when we think of restricting the Bill of Rights, for its guarantees are premised on an unclouded sense of permanence, a sense that they are inalienable, a sense that we as a society are committed to the proposition that the fundamental protections of the Bills of Rights should be left alone. It is against this background that the Administration has concluded that the isolated incidents of flag desecration that have occurred since 1989 do not justify amending the Constitution in this significant respect.

II.

The text of the proposed amendment is short enough to quote in full: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."5 The scope of the amendment, however, is anything but clear, and it fails to state explicitly the degree to which it overrides other constitutional guarantees. Accordingly, even if it were appropriate to create an exception to the Bill of Rights in some limited manner, it is entirely unclear how much of the Bill of Rights the proposed amendment would trump.

By its terms, the proposed amendment does no more than confer affirmative power upon Congress to legislate with respect to the flag. Its wording is similar to the power-conferring clauses found in Article I, Section 8 of the Constitution: "Congress shall have power to lay and collect taxes," for instance, or "Congress shall have power * *** to regulate commerce ** among the several states." Like those

3141 Cong. Rec. S4275 (daily ed. Mar. 21, 1995).

4 The Federalist No. 49, at 314 (James Madison) (Clinton Rossiter ed., 1961).

5 S.J. Res. 14. See also H.J. Res. 33 (same).

powers, and all powers granted government by the Constitution, the authority given by the proposed amendment would seem to be limited by the Bill of Rights and the Fourteenth Amendment.

The text of the proposed amendment does not purport to exempt the exercise of the power conferred from the constraints of the First Amendment or any other constitutional guarantee of individual rights. Read literally, the amendment would not alter the result of the decisions in Johnson or Eichman, holding that the exercise of state and congressional power to protect the symbol of the flag is subject to First and Fourteenth Amendment limits. Instead, by its literal text, it would simply and unnecessarily make explicit the governmental power to legislate in this area that always has been assumed to exist.

To give the proposed amendment meaning, then, we must read into it, consistent with its sponsors' intent, at least some restriction on the First Amendment freedoms identified in the Supreme Court's flag decisions. It is profoundly difficult, however, to identify just how much of the First Amendment and the rest of the Bill of Rights is superseded by the amendment. Once we have departed, by necessity, from the proposed amendment's text, we are in uncharted territory, and faced with genuine uncertainty as to the extent to which the amendment will displace the protections enshrined in the Bill of Rights.

We do not know, for instance, whether the proposed amendments is intended, or would be interpreted, to authorize enactments that otherwise would violate the due process "void for vagueness" doctrine. In Smith v. Goguen,6 the Court reversed the conviction of a defendant who had sewn a small flag on the seat of his jeans, holding that a state statute making it a crime to "treat contemptuously" the flag was unconstitutionally vague. We cannot be certain that the vagueness doctrine applied in Smith would limit as well prosecutions brought under laws enacted pursuant to the proposed amendment.

Nor is this a matter of purely hypothetical interest, unlikely to have much practical import. The proposed amendment, after all, authorizes laws that prohibit "physical desecration" of the flag, and "desecration" is not a term that readily admits of objective definition. On the contrary, "desecrate" is defined to include such inherently subjective meanings as "profane" and even "treat contemptuously❞ itself. Thus, a statute tracking the language of the amendment and making it a crime to "physically desecrate" an American flag would suffer from the same defect as the statute at issue in Smith: it would "fail [] to draw reasonably clear lines between the kinds of nonceremonial treatment that are criminal and those that are not.”7 The term "flag of the United States" is similarly "unbounded," and by itself provides no guidance as to whether it reaches unofficial as well as official flags, or pictures or representations of flags created by artists as well as flags sold or distributed for traditional display. Indeed, testifying in favor of a similar amendment in 1989, then-Assistant Attorney General William Barr acknowledged that the word "flag" is so elastic that it can be stretched to cover everything from cloth banners with the characteristics of the official flag, as defined by statute,9 to "any picture or representation” of a flag, including "posters, murals, pictures, [and] buttons."10 And while a statute enacted pursuant to the amendment could attempt a limiting definition, it need not do so; the amendment would authorize as well a statute that simply prohibited desecration of "any flag of United States." Again, such a statute would implicate the vagueness doctrine applied in Smith, and raise in any enforcement action the question whether the empowering amendment overrides due process guarantees.

Even if we are prepared to assume, or the language of the amendment is modified to make clear, that the proposed amendment would operate on the First Amendment alone, important questions about the amendment's scope remain. Specifically, we still face the question whether the powers to be exercised under the amendment would be freed from all, or only some, First Amendment constraints, and, if the latter, how we will know which constraints remain applicable.

An example may help to illuminate the significance of this issue. In R.A.V. v. City of St. Paul,11 decided in 1992, the Supreme Court held that even when the First Amendment permits regulation of an entire category of speech or expressive con

6415 U.S. 566 (1974).

7415 U.S. at 574.

8 Id. at 575.

9 See 4 U.S.C. § 1.

10 Measures to Protect the Physical Integrity of the American Flag: Hearings on S. 1338, H.R. 2978, and S.J. Res. 180 Before the Senate Comm. on the Judiciary, 101st Cong., 1st Sess. 8285 (1989) ["1989 Hearings"].

11505 U.S. 377 (1992).