Honor. I am a survivor. My brother and many of my close friends paid the supreme sacrifice. Because of them, hundreds of thousands of them, you and I are here today. What I have written about above is typical of the World War II veteran. He knows why he was going to war. Many veterans who have gone to later wars have not been so sure of the reason for their being there. We, the people, are the government and it is our duty to make sure we are not wasting lives in becoming involved in military actions that cannot be resolved or come to an honorable conclusion. We do not work for the Congress or the administration, they work for us.

We live in the greatest country in the world. After all I have seen of the world, I would not trade any of our states for it.

Our country is unique. We have all colors, races, nationalities and ethnic groups. We have the greatest freedom of any country in the world. We have problems, but all nations do. However, we have many more good things in this country than bad. One of the unfortunate things is that there is so much crime reporting on television and other news media, that we very seldom hear about the good things.

But wherever Americans go we can be proud of our heritage. Our flag-the Red, White and Blue is the most respected emblem in the world. I am a strong supporter of a constitutional amendment to protect that flag. I believe the war did change me. I have come to have more respect for our country and realize that we have the best of everything; people, government, freedom and opportunities.

PREPARED STATEMENT OF GENERAL LIVINGSTON

Senator Goldwater said: "We cannot allow the American flag to be shot at anywhere on earth if we are to retain our respect and prestige.” We certainly should not allow it to be shot at here at home

The flag is that one symbol which represents to the world the commitment of our great country to freedom. When our flag is present, people throughout the world, both friends and foe, recognize this flag may have been tarnished at times in our history, but even tarnished, it represents a people who will not compromise under any circumstance.

Americans have never waved a white flag but we will wave the red, white and blue flag until our elected officials return to us the right to protect the greatest symbol of freedom on this planet.

Today, let us all stand together and send the message “it is time" to fix this problem; it is time to quit making excuses and to ensure that those who have defended the flag in combat don't have to defend this flag-our flag-on the streets of our homeland.

GOD BLESS AMERICA!

GENERAL LIVINGSTON.

PREPARED STATEMENT OF PROF. STEPHEN B. PRESSER

My name is Stephen Presser, I am the Raoul Berger Professor of legal history at Northwestern University School of Law, I have been serving for several years as a Constitutional issues consultant to the Citizens Flag Alliance, and I am submitting this written testimony in support of S.J. Res. 14, the proposed "Flag Protection Amendment, and against any further attempts to protect the flag by Congressional statute. I have appeared before Senate and House subcommittees to testify in favor of this Amendment several times before, and my goal in this testimony, as it was before, is both to indicate the persuasive arguments in favor of the Amendment, and to address some of the objections that were raised ten years ago, four years ago, and are still being raised against the Amendment.

You have heard from other proponents of the Amendment who were extremely eloquent in its support and who addressed their special feeling for the American flag and the need to protect it from desecration. The desire for the Amendment is also evident, from the fact that the Amendment has repeatedly garnered so many sponsors in the House and Senate and has been the subject of favorable resolutions in 49 state legislatures. I do not know of any other Amendment in American history that has ever achieved that kind of support prior to its passage. I believe that I can best serve the Committee by making some comments about the legal background that gives rise to a need for the Amendment, by underscoring that unless the Amendment is passed a federal statute could not do the job of protecting the flag, and by addressing the general arguments of legal scholars and commentators, who have criticized this Amendment effort.

I. THE NEED FOR THE FLAG PROTECTION AMENDMENT

The need for the Amendment, as you know, results from the Supreme Court's surprising decision in Texas v. Johnson (1989). There, by a bare five to four majority, the Court declared that flag-burning was speech protected by the First Amendment, and could therefore not be banned by the federal government or by state legislatures. This decision outraged the four dissenters and many Americans, who thought that the defendant Gregory Johnson's conduct (incinerating the flag after repeatedly chanting "Red White and Blue, we spit on you") was an outlandish act of arson, and not the kind of speech James Madison had in mind when he and his colleagues were drafting what became the First Amendment.

Chief Justice Rehnquist, writing for the dissenters in Johnson, wondered how legislation protecting the flag that had been on the books in most states for a century, without objection, could have suddenly become impermissible. Rehnquist, after observing that several of the Court's greatest champions of the First Amendment, including Hugo Black and Earl Warren, thought that the flag could be protected from desecration, noted that the protection of the national symbol ought to be seen as no threat to the Constitution as a matter of common sense, perhaps, rather than as a matter of sophisticated First Amendment jurisprudence. But common sense is now too often in short supply in Constitutional discourse. The obvious, it would seem, now has to be embarrassed in the academy and in the courts, where gorgeous subtleties and refined analysis cloaked in balancing tests and multi-level tiers of scrutiny conceal what is essentially result-oriented reasoning. The majority's opinion in Texas v. Johnson is one of the worst examples of this sad tendency.

In Texas v. Johnson the majority even conceded that if the government had a "compelling interest" in preserving the symbolic value of the flag it could override any First Amendment protections, but the court then declared, in effect, that the only permissible “symbolic value" of the flag was that it stood for the right to express oneself in opposition to the flag and desecrating the flag was simply a manifestation of this right. Thus, by this curious circular argument, the Court held that the government could have no "compelling interest" in preventing flag desecration, since flag desecration simply confirmed the symbolic value of the flag. I believe that the Supreme Court had no basis for declaring that preserving this sort of license-it can't really be called liberty-was the only symbolic value of the flag, but a majority of the Supreme Court has held fast to this view.

Following Texas v. Johnson, in a wave of public outrage, the Congress passed a statute (Pub. L. 101-131, Sections 2,3, October 28, 1989, 103 Stat. 777) forbidding flag desecration. The statute was drafted in neutral language, in order to seem as not to be attacking speech. It provided, in pertinent part, that "Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both." (18 U.S.C.A. Section 700(a)(1)). The statute also indicated that it did not "prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled." Id., Section 700(a)(2). Several leading constitutional scholars, most prominently Lawrence Tribe of Harvard, advised Congress that such a statute could solve the problem, and that the First Amendment and statutory flag protection could co-exist. Several of us told the Congress that given the Court's views expressed in Texas v. Johnson, only an Amendment could authorize flag desecration statutes, since the Court was disposed to read any prohibition on conduct involving the flag as an infringement of the First Amendment. We were proved right when, a year after Johnson, in U.S. v. Eichman, the Supreme Court found the new statute unconstitutional.

Sadly, there appear to be a few distinguished members of the United States Senate who still wrongly believe a statute protecting the flag could be held Constitutional and who resist an Amendment for that reason. If there is one clear principle in current Supreme Court jurisprudence, however, it is that the Supreme Court will hold that any statute dealing with the flag is interference with purported First Amendment freedoms, because a majority of the Court has indicated that it will find any statutory attempt to protect the flag to be an impermissible endorsement of a view that the court has said the government has no compelling interest in promoting. Justice Brennan made as clear as he could in his opinion in Eichman that even a facially-neutral statute would be construed as an attempt to silence speech expressing a particular point of view (that of those seeking to express contempt for the flag by desecrating it). Any statute seeking to protect the flag, then, would thus be construed as a violation of the First Amendment, because, in this misguided construction, it would be construed as a Congressional statute interfering with freedom of speech. Justice Brennan made clear that in the case of such statutes the Court would look beyond form to substance, and would declare them unconstitutional.

In Eichman Brennan stated that "Although the Flag Protection Act [18 U.S.C.A. Section 700] contains no content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest [protecting the flagĺ is related to the suppression of free expression."" United States v. Eichman, 496 U.S. 310, 315 (1990). A Court manifesting Brennan's view would find any act passed with a desire to protect the Flag to be an unconstitutional infringement of freedom of speech.

Some current advocates of a statute have mistakenly believed that they could formulate one that would come within the "fighting words" exception to the broad sweep of First Amendment protection. They are wrong. Not only is that doctrine increasingly under attack, and unlikely to furnish much support, but in light of the Supreme Court's unwillingness in Texas v. Johnson to allow breach of the peace justifications for flag protection legislation, and its concomitant insistence that normal state criminal statutes are sufficient to protect persons against harm caused by "fighting words" uttered in connection with the flag, it is inconceivable that any statute could now survive the Constitutional scrutiny of a kind that the Court used in Eichman.

Justice Brennan has retired from the Court, but Justice Souter, who replaced him, has First Amendment views similar to his, and Justices Scalia and Kennedy, who concurred with Brennan in Eichman would take the same position in a future case. Justices Ginsburg and Breyer have first Amendment views close to those of Justices Souter, Kennedy, and Scalia, and would make up the necessary five votes for a majority in any future challenge to a statute. Justice O'Connor was one of the dissenters in Johnson and Eichman, but since those decisions she has (with Justices Souter and Kennedy) been one of the Court's strongest proponents of stare decisis (following previously decided cases), and she might well be found in the majority rejecting future statutes. Justice Thomas's views on this question are unknown, but he has often been sympathetic to the positions taken by Justice Scalia, and he might well follow him on this matter. Justices Rehnquist and Stevens would likely find a statute constitutional if they chose to follow the reasoning in their dissenting opinions in Johnson and Eichman. At best then, any new statute would fall in a 5 to 4 decision, and very possibly in a 7 to 2 decision. The statutory route is simply not open to those who would protect the flag, just as it was not in 1989.

Following the failure of the statute, after the Eichman decision in 1990, the proponents of the Amendment once again sought help from Congress, only to suffer defeat as the Amendment failed to garner the necessary two thirds majority in the House. The Amendment effort then returned to the grass roots, and its proponents redoubled their efforts. As you know, in 1995, the Amendment passed the House by the requisite two-thirds majority, only to fail by three votes in the Senate. During the last Congressional session, as you also know, the Amendment again garnered the requisite majority in the House, through grass-roots effort, although it was never brought to the floor of the Senate for a vote. It has been reintroduced in this session, and is now before you again.

II. THE ARGUMENTS IN FAVOR OF THE AMENDMENT

Why then am I for this Amendment, when the Supreme Court has twice rejected the constitutionality of flag desecration, when many members of the legal academy, and many commentators in the media remain adamantly opposed to it? Why do I reject the view of those who still claim that the Flag Protection Amendment is an attempt to infringe our precious First Amendment freedoms? First, I believe that since before the 1989 Johnson decision it was widely believed that the First Amendment could properly be construed as not including within its ambit acts of flag desecration, and since that view has only been overturned by the slimmest of transient majorities on the Supreme Court, widespread public opinion, expressed in the continued grass roots desire for a Constitutional Amendment, ought to be the most relevant factor in defining the nature of our First Amendment freedoms. In other words, we have to ask the question here, who should be defining the scope of the First Amendment? Who should be determining what the word "speech" in that Amendment means?

If the American people (as indicated by the favorable resolutions in forty-nine state legislatures) feel that there is a difference between pure political speech (which the First Amendment incontrovertibly protects), and intentionally outrageous acts of arson, defecation, or other forms of destruction (which it does not), that feeling deserves deference, and a Constitutional Amendment is the proper manner in which that deference ought to be expressed. The Constitution and the Bill of Rights, after all, are acts of the sovereign people, and the sovereign people have a continuing role in the preservation and interpretation of the Constitution.

To put this another way, the current Flag Protection Amendment effort is a vital exercise in participatory democracy, in popular sovereignty, and is deserving of support for that reason alone. Popular sovereignty is the basis of our Constitutional system, and Article V, which authorizes the Amendment process, recognizes this. Where the Supreme Court has misconstrued the Constitution, the Amendment process allows the people to correct the Court's error, as was done, for example, in the case of the Thirteenth, Fourteenth, Sixteenth, and Nineteenth Amendments.

There is another manner in which the Flag Protection Amendment effort can be seen as a necessary corrective, and this brings me to what I believe is the most important reason the Amendment ought to have the support of Constitutional scholars, and deserves passage. I believe that the Flag Protection Amendment is a small but vital step in returning us to a Constitutional path from which we have wrongly strayed, and in redressing a delicate Constitutional balance that has become dangerously skewed.

III. A DELICATE BALANCE OF PHILOSOPHIES AND PURPOSES

Our Framers understood that there were two important elements to our Constitutional tradition which we inherited from Great Britain-a liberty element and a responsibility element. Without the liberty guaranteed to us by the English Common Law, we often said at the time of the Revolution, we would be slaves, and no better than the subjects of some Asiatic potentate. Without liberty we could not hope to realize the aspirations toward religious freedom and republican government for which the United States was colonized and then, later, declared independent. But the Framers also realized that without responsibility, without order, without submission to the rule of law, there could be no protection for life, limb and property, there could be no lasting liberty. The Federal Constitution itself was drafted and adopted following the failure of the state legislatures to understand that more responsibility was needed, and that we could not enjoy the blessings of liberty without security to person and property.

To make this same point in a manner heard more generally today, it was one of the goals of the Constitution's framers to foster a sense of community among all the citizens of our republic, to secure a certain baseline of civilized behavior. It is the recognition of this goal, by the way, that has always permitted reasonable time place and manner restrictions on even the speech protected by the First Amendment. The proposed Flag Protection Amendment is quite consistent with such restrictions.

If the Flag Protection Amendment becomes law, and Flag protection legislation is enacted, the message that flag burners, defecators, or other flag destroyers and abusers might seek to convey-that we ought to destroy the symbols that bind us together can still be conveyed by pure speech, of course. All that will have happened will be that one particular incendiary manner of expressing similar sentiments would be restricted, in the interest of other Constitutional goals, most notably the recognition that with liberty comes responsibility, and that it is the duty of society to enforce that responsibility and to preserve order. Even if the Flag Protection Amendment is adopted, it would still be true that our First Amendment jurisprudence would be marked by a tolerance for the expression of dissenting or even despised views, but not necessarily by a tolerance for all intentionally inflammatory actions.

Many of our judges, and the majority of the Supreme Court in the two flag decisions in particular, appear to have gone too far in embracing an individualistic constitutional jurisprudence, and to have forgotten other elements in our political and constitutional tradition. The Framers of the Constitution and the Bill of Rights were not merely a group of late 18th century John Stuart Mills, devoted solely to maximizing opportunities for the expression of individual lifestyles or sentiments. They adhered to a nearly bewildering number of governmental philosophies, chief among them what we now call classical republicanism, which was characterized by an emphasis on individual restraint, altruism and civic virtue.

Included also among the Framers, of course, were a bevy of Hobbesians who believed in the need for a strong central government to protect us from our baser instincts. Included as well were a number of evangelical theorists who sought to preserve a strong role for religion and morality in American life. There were also adherents to the Scottish Enlightenment and to the new market theories of Adam Smith. Finally, there were a number of Lockeans, committed to the protection of what they took to be individuals' rights of life, liberty, property, and the pursuit of happiness. It is not too much to say that it was the genius of our Constitution and of much of our political history that we usually managed successfully to juggle our competing basic philosophies, to grant more individual freedom than was available in any

other country, but to balance it by community-centered restraints, in order to achieve what we call ordered liberty. We thus succeeded in protecting the security of person and property, but sought still to allow our people to enjoy enough independence to realize their particular callings in the community. When the Supreme Court's majority, in its Johnson decision, created a single symbolic meaning for the flag, its supposed apotheosis of individual self-expression, it betrayed a fundamental misunderstanding of the nature of the American founding.

Thus, if there is a single message in our Constitutional history, it is probably that each time we move too far in one direction, towards unlimited liberty, or toward too restrictive order, there is a reaction, and sometimes a violent one. In recent years we have been living through a period in which this delicate balance of Constitutional philosophies and purposes has gone awry. We are at a point where the personal liberty element of our tradition has, in effect, spun almost out of Constitutional control. It has now become commonplace to lament the decline in national standards and morality, but it is rarely recognized that a significant part of the problem is that many of the people and the courts have forgotten what the Constitution, and perhaps even the flag, stood for. For at least the last forty years, our constitutional law has been radically reconceived as concerned only with the gratification of individual desires, and the expansion of individual license.

The erroneous notion that our basic constitutional philosophy is individual selfactualization—the mistake of the Johnson majority-has led too many courts to misconstrue the Constitution and to forget the need for community responsibility and self-restraint. This kind of Constitutionalism makes the First Amendment and the Fourteenth Amendment into tails wagging the whole Constitutional dog, and improperly uses the Bill of Rights as a club to beat back the right of the people to take some necessary steps for the preservation of ordered liberty. The original Bill of Rights recognized the need for responsibilities as well as rights, as does the Flag Protection Amendment.

IV. CONSEQUENCES OF CONSTITUTIONAL IMBALANCE

Ideas or the failure to remember ideas have consequences. I don't think it goes too far to say here that we should draw a lesson from recent events in America such as the riots following the first Rodney King trial several years ago, the recent explosion in the birth of children born out of wedlock, the increase in mindless and random acts of violence particularly in our schools (as most horrifically observed recently in Colorado), the Oklahoma City bombing, or even the recent widespread failure of many governmental officials, including even the President, to abide by the simplist moral principles, or perhaps even the rule of law itself. All of these, I think it can be said, are products of our failure, as a Constitutional society, to remember that with individual liberty ought to come basic decency and responsibility.

The Supreme Court's two decisions regarding flag burning didn't create all these problems, of course, but they are part of a jurisprudence that encourages moral chaos and individual irresponsibility in society. In the Texas v. Johnson case the five Justices in the majority were guilty of failing to be able to distinguish between the kind of liberty of speech which needs to be protected in a republic, and the kind of irresponsible and outrageous acts of arson and desecration which should be punished. The Flag Protection Amendment does no more than return us to an understanding that we had as recently as ten years ago: The understanding of Justices Earl Warren and Hugo Black. This was that our traditions allow for full freedom of speech, but that our traditions also demand that the exercise of our rights be done in a matter that accords with our responsibilities. This is why I believe that what's done in other nations with regard to flags is of no relevance here. We have a long tradition of protecting our flag, as the unique symbol of our nationhood and national community, and its protection-for a century-was a basic part of our heritage of ordered liberty.

I don't mean by my support of the Amendment that I think the welfare of the Republic is immediately threatened by platoons of potential flag burners, and I think it's important to realize that the proponents of the Flag Protection Amendment are not motivated by a Spanish-inquisition-type zeal to punish flag desecrators or even flag defecators. Indeed the actual number of flag desecrators is not at all the issue here. The issue is what the Flag Protection Amendment means to the American people in general, and, in particular to those who have fought so hard for it. They are motivated by a desire to recapture the community's right to set standards of responsibility and decency, and to guarantee that there are some things that are even more important than individual self actualization. We Americans have no national religion, nor do we have many coherent tangible symbols of our traditions of liberty under law, of liberty with responsibility. The flag may be the only such