the matter is that even 74 seems to me a pretty large number for people who want to preserve the values that our country believes

in.

Let me say one other thing, and then I will turn it to Senator Leahy, of course. Senator Chafee suggested that the old slippery slope argument should prevent us from sending this amendment to the States. That argument states that if we pass the amendment to protect the flag, there will be a limitless number of amendments protecting the Bible, the Constitution, the cross, the menorah, and other symbols. Of course, the flag, unlike these other objects, has been carried into battle by our troops of all parties and faiths. It has been laid on the caskets of all of our fallen heroes and receives the Pledge of Allegiance from all of our school children, or at least most all of our school children.

Unlike the other symbols, which Senator Chafee mentioned, large super-majorities have supported physical protection for the flag. In fact, 49 States have asked for this amendment. I have to believe that is not just all emotional.

So article V, and I contend, of the Constitution itself, and specifically its multiple and super-majority requirements, are a sufficient guard against a slippery slope of future amendments as it has been for other members for the last 200 years.

Let me also state in regard to the statute that we passed back then, the argument was that we can do this by statute, and there are still those who are making that argument today, although twice now we have been shot down on a statutory basis.

The fact of the matter is 91 Senators voted for that, and I would suggest that that probably would be the form of any flag desecration statute after this amendment is hopefully passed by both Houses of Congress and ratified by 38 States, or three-quarters of the States, but be that as it may, I have been the first to say that there are two points of view here, and I respect both. It is just that I happen to agree with the three people who testified for the amendment and respect the others and you who have differing points of view.

Let me turn to Senator Leahy, and we will finish this up.
Senator LEAHY. Thank you, Mr. Chairman.

I heard the mention of how many cases of flag-burning there have been. I feel any cases of flag-burning, even one, is too many. Somebody asked me earlier today, well, what if somebody came and burned-I have always talked about flying the flag outside of my home, something I do very proudly. In fact, most Vermonters, when they go by, they know I am home because the flag is flying. I tend to have a lot of people drop by. Sometimes they only drive by, but it is nice to live in a State like ours where you can do that.

Somebody said, "What about this? You do not have a law. You do not have a Constitution. Suppose somebody came and took your flag and burned it." I said, "Now wait a minute. We have got all kinds of laws. We can get the person for trespassing. We can get them for destruction of property," my property in this case.

If my young son, the Marine, was home, we would have to serve the subpoena on the person at the hospital, I would suspect, afterward, but these are the things that happen.

I would also mention my pride in going to countries, totalitarian countries, where I could say proudly to the people, where they have to have every single kind of a law to show respect to their government officials, to the symbols of the state and everything else they have to have these laws and have to enforce them all the time to say in our country, we do that without the laws because we have respect for our Government and we have respect for our symbols, something these totalitarian countries have to instill by fear, not by example.

I also have to think, as reprehensible as it is, to have the burning of flags, we have had far more incidence of young people shooting other young people, not just the Colorado incident, but throughout this country. Frankly, it would be good if maybe this committee would spend as much time worrying about how to get guns out of the hands of young people.

Frankly, it would be important on the number of hate crimes that we have if we could find time to have hearings and a markup on the hate crime bill, now before the committee. These are things I would like to see happen because these are impacting people all the time.

The people of Colorado, I am sure all respect their flag, as we do. Right now, they are far more concerned about the safety of the children who are still alive in Colorado as they mourn those who are not. That is far more preeminent in their mind, and I suspect if they were to speak to the Congress, they would say that is what they would like us to be focussing our time on.

Mr. Moss, I do appreciate you being here. I am sorry that we were not given the opportunity-and I understand it is a mistake in communication somewhere for you to testify, as expected, earlier.

I have a few questions, and I know the chairman has a busy schedule, and others do. I will submit my questions for the record. Mr. Moss. Thank you, Senator Leahy.

The CHAIRMAN. We will keep the record open.
Senator LEAHY. And I thank you for being here.
Mr. Moss. Thank you.

The CHAIRMAN. Thank you.

We will keep the record open for others to submit their matters for the record as well.

With regard to Senator Leahy's comments about totalitarian governments, most of those governments do not permit free speech. There is nothing in this amendment or anything pertaining to it that would prohibit any type of free speech, the right to criticize the flag, the right to condemn it, the right to say whatever you want to. It is just that we believe that we ought to prevent physical desecration of the flag, and the only way we can do that now is through a constitutional amendment, in our opinion.

So, again, I just say that there are sincere people on both sides of this issue. We will just have to battle it out on the floor and hopefully get it through both houses, and then, from my point of view, battle it out in the 50 State legislatures and see what happens, but I feel very deeply about it, and those who have spoken on the other side feel very deeply about their position as well. And

I respect both sides, but we are going to push this with everything

we can.

We would have preferred to have the administration with us on this, of course, but in any event, we respect you and appreciate you being here. I am sorry we had that little flap before. I personally did not mean that or want that to happen.

With regard to hate crimes, we are going to have a hearing within the next few weeks on hate crimes. I filed a bill that, hopefully, will help to solve some of these problems, but we will talk about it and see where we go from there.

With regard to gun control, it is a constant issue. It is going to be a constant issue. I suspect that the juvenile justice bill will be up within the next month, and I suspect, at that point, there will be all kinds of efforts to impose gun control statutes on the American people, rightly or wrongly. And we will just have to face those and, as far as I am concerned, let the majority win and govern, and we will just face those at that time.

There is one thing that I am super sure of, and that is that our country is in a moral malaise right now, that our values are being tested on all fronts, and that our children are being tested in so many vile and terrible ways.

I just got a list of hundreds of Internet sites where you can learn to build bombs and other weapons of destruction. You wonder how these kids get a hold of all these things. Sooner or later, we may have to come to a conclusion, as we have in some instances, for the protection of children and juveniles, that we have to limit some of these so-called rights in order to protect them and protect society as a whole. The question is: How can we do that? What form should they be? Should it be done at all? This committee is going to have to face these issues, and as long as I am chairman, I will sure try to face them with my colleagues. Of course, I want to give equal consideration to my colleagues on the other side as well, many of whom differ with me on some of these issues. So that is what makes this country great is that we can have these differences and we can debate them, and we can do so in a reasoned and sometimes passionate and sometimes dispassionate manner.

So, with regard to your being here, we appreciate you being here and appreciate your statement, and we will keep the record open for anybody who has any questions in writing until the end of the day and we will go from there.

Thank you so much. Good to be with you.

[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. Johnson1 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

*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).

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:

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

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.

n

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 would 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 Bill 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.

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

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

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

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 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 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 amendment 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,"8 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 the 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 Amend

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"].

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