Amendment XIV (1868). Grants U.S. citizenship to all persons born or naturalized in the United States (overruling Dred Scott v. Sandford, 60 U.S. [19 How.] 393 [1857]).

Amendment XXVI (1971). Prohibits abridgment of right to vote on account of age for citizens who are eighteen and over (overruling Oregon v. Mitchell, 400 U.S. 112 [1971]).]

D. The Prohibition Amendments

Amendment XVIII (1919). Establishes Prohibition; grants to Congress and the states concurrent power to enforce the Amendment's provisions.

Amendment XXI (1933). Repeals Prohibition; prohibits importation of intoxicating liquors into a state in violation of the laws of that state.

The CHAIRMAN. We are pleased to have with us today Prof. Richard Parker of the Harvard University School of Law. Professor Parker has worked with this committee for many years on this amendment, and we are very grateful to him.

Next we have Gen. Pat Brady, whom I just introduced and who is chairman of the Citizens Flag Alliance. We really appreciate having you here, General Brady, and appreciate the service you have given to our country.

We also have Mr. Gary May, a distinguished Vietnam veteran and a professor of sociology at Southern Indiana University. Happy to have you with us, Mr. May.

Next we have Maribeth Seely, an elementary school teacher from New Jersey, who will enlighten us today about how school children feel about the American flag.

We are also pleased to have Rev. Nathan Wilson of the West Virginia Council of Churches. Reverend, we are happy to have you with us.

And we have retired Lt. Gen. Edward Baca from New Mexico, who has a special flag and a special story for us today.

So, Professor Parker, we will begin with you, and then we will just go across the table.

PANEL CONSISTING OF RICHARD D. PARKER, WILLIAMS PROFESSOR OF LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MA; PATRICK H. BRADY, CHAIRMAN, BOARD OF DIRECTORS, CITIZENS FLAG ALLIANCE, AND MEDAL OF HONOR RECIPIENT, SUMNER, WA; GARY E. MAY, ASSOCIATE PROFESSOR OF SOCIAL WORK, UNIVERSITY OF SOUTHERN INDIANA, EVANSVILLE, IN; MARIBETH SEELY, FIFTH GRADE TEACHER, SANDYSTONE-WALPACK SCHOOL, BRANCHVILLE, NJ; REV. NATHAN D. WILSON, EXECUTIVE DIRECTOR, WEST VIRGINIA COUNCIL OF CHURCHES, CHARLESTON, WV; AND EDWARD D. BACA, FORMER CHIEF, NATIONAL GUARD BUREAU, ALBUQUERQUE, NM

STATEMENT OF RICHARD D. PARKER

Mr. PARKER. Thank you very much, Mr. Chairman. Thanks for inviting me today.

As both you and Senator Leahy said, most adult Americans support this amendment. They have supported it overwhelmingly for 10 years, along with 49 of the State legislatures which petitioned Congress. This support has been sustained in the face of virtually uniform opposition from the big media and from various elite groups like law professors, from which I come.

This is a popular cause. It is a people's cause, and this is a test of whether such a cause against such elite opposition can still succeed in America. It is a test of Article V of the Constitution, which is a keystone of the Constitution, for the fact is that our Constitution at its foundation rests upon democracy, not on people wearing black robes.

This is not just a popular amendment; it is an important amendment. That is because it is a restorative amendment-not a transformative amendment, a restorative amendment in two ways:

First, it restores the traditional and intended meaning of the first amendment, a meaning that was changed, amended, if you like, by five members of the Supreme Court. It is an effort to preserve what Mr. Moss says in his statement submitted today to you is so important, which is permanence in the meaning of the Constitution. This amendment seeks to preserve the permanence of the meaning of the first amendment that was changed by the Supreme Court majority.

Second, it is a restorative amendment in restoring to Congress authority to protect and preserve a vital national resource. Now, this resource, to be sure, is invisible. It can't be measured in dollars and cents. But it is not a matter of mere symbolism, as has been suggested. It is a matter of values and of principles. It has to do with respect for the aspiration to national community in the United States of America.

This matter of principle is vital because, without preserving this basic respect for this basic ideal, the exercise of liberty eventually will wither. Liberty that does not rest on a foundation of community rests on sand. It is also vital in that any great national project, not just military projects but domestic reform projects, like the civil rights legislation and movement of the 1960's, depends on the preservation of community.

Now, the fact I believe we all know is that this value, this principle, is now eroding. What is the evidence of that? Because it is invisible, I probably can't point to concrete evidence. But I do believe we do all know it. Senator Bob Kerrey said to this committee a few years ago that there is a tidal mud, I think he described itI have remembered that ever since-of decay in the country.

But I ask you, if the next President were to repeat the words of President Kennedy at his inaugural-Ask not what your country can do for you; ask what you can do for your country-would the response today be what it was then?

Now, fast forward to the year 2025. What would the response be then? Can we be sure? What is causing this erosion is not a few acts of a few malcontents. I agree with that. What is causing the erosion is a decision by five members of the Supreme Court that legitimated disrespect for the flag, that wrapped it in the mantle of the first amendment. And what is further producing erosion is our failure to respond, to stand up for principle. Thereby we are further legitimating and causing young people in this country to become used to disrespect for the flag.

By the year 2025, there may not be many people left who remember what respect for this ideal of national unity ever involved. So this issue is an issue that has to do with future generations, not

immediate gratification but the future of the United States of America.

Now, is there a cost involved here? I don't have time now to speak to this question, but I would be happy to respond to your questions about it. There is a great deal of scare rhetoric that surrounds this proposed amendment. There is a great deal in the statement that Mr. Moss submitted to you.

Any significant legislative proposal or certainly any constitutional amendment is subject to such claims. But I ask you to think about them coolly, because most of them—indeed, I believe all of them turn out to be empty. And I know there are absolutists who will say there is no freedom unless anything goes, that, as was said earlier, the most extreme forms of dissent, quote-unquote, must be allowed. But I would suggest to you that the American people know and I believe the Senate knows that extremism is not only a virtue and that moderation is not necessarily a vice.

I agree with the chairman that there is no alternative. There is no statutory alternative. And, again, I would be happy to respond to your questions on that point.

Let me conclude by saying that I think this is a great test and a great opportunity. I appeal to the Senate to send this proposed amendment to the State legislatures and let the constitutional process work. Let article V of the Constitution work. Let the people decide.

Thank you very much.

[The prepared statement of Mr. Parker follows:]

PREPARED STATEMENT OF RICHARD D. PARKER

Whether Congress should be permitted, if it chooses, to protect the American flag from physical desecration has been debated for almost a decade. The debate has evolved over time but, by now, a pattern in the argument is clear. Today, I would like to analyze that pattern.

Consistently, the overwhelming majority of Americans have supported flag protection. Consistently, lopsided majorities in Congress have supported it too. In 1989, Senators voted 91-9 and Representatives 371-43 in favor of legislation to protect the flag. Since that route was definitively blocked by a narrow vote on the Supreme Court in 1990, over two-thirds of the House and nearly two-thirds of the Senate have supported a constitutional amendment to correct the Court's mistake and, so, permit the majority to rule on this specific question. Up to 80 percent of the American people have consistently supported the amendment.

In a democracy, the burden should normally be on those who would block majority rule-in this case, a minority of the Congress, influential interest groups and most of the media, along with the five Justices who outvoted the other four-to justify their opposition. They have not been reluctant to do so. Indeed, they have been stunningly aggressive. No less stunning has been their unresponsiveness to (and even their seeming disinterest in) the arguments of the popular and congressional majority. What I am going to do is focus on the pattern of their self-justification. I am going to speak frankly, not just as a law professor, but as an active Democrat. For a disproportionate share of the congressional, interest group and media opposition has been aligned with the Democratic Party. What has pained me, in the course of my involvement with this issue, are attitudes toward our democracy revealed in the structure of the argument against the flag amendment by so many of my fellow Democrats-attitudes that would have seemed odd thirty years ago, when I worked for Senator Robert Kennedy, but that now seem to be taken for granted.

I. ARGUMENTS ABOUT (SUPPOSED) EFFECTS OF THE CONSTITUTIONAL AMENDMENT:
TRIVIALIZATION AND EXAGGERATION

The central focus of argument against the flag amendment involves the (supposedly) likely effects of its ratification. Typically, these effects are-at one and the

same time-trivialized and exaggerated. Two general features of the argument stand out: its peculiar obtuseness and the puzzling disdain it exudes for the Congress and for the millions of proponents of the amendment.

A. Trivialization

(1) The "What, Me Worry?” Argument. The first trivialization of the amendment's effects is the repeated claim that there is simply no problem for it to address. There are, it is said, few incidents of flag desecration nowadays; and those few involve marginal malcontents who may simply be ignored. The American people's love of the flag, the argument continues, cannot be disturbed by such events. It concludes that, in any event, the flag is "just a symbol" and that the amendment's proponents had better apply their energy to-and stop diverting the attention of Congress from— other, "really important" matters.

What is striking about this argument is not just its condescension to the amendment's supporters and to the Congress which, it implies, cannot walk and chew gum at the same time. Even more striking is its smug refusal to recognize the point of the amendment. The point is not how often the flag has been burned or urinated on (about 60 times over the last four years, in fact) or who has been burning it and urinating on it. Rather, the point has to do with our response-especially our official response to those events. In this case, the key response has been that of the Court and, since 1990, of the Congress. When we are told, officially, that the flag represents just "one point of view" on a par, and in competition, with that of flag desecrators and that flag desecration should not just be tolerated, but protected and even celebrated as free speech; when we get more and more used to acts of desecration; then, "love" of the flag, our unique symbol of national unity, is bound gradually to wither-along with other norms of community and responsibility whose withering in recent decades is well known.

To describe what is at stake as "just a symbol" is thus obtuse. The Court's 5-4 decision was not "just a symbol." It was an action of a powerful arm of government, and it had concrete effects. To be sure, its broader significance involved values that are themselves invisible. The issue it purported to resolve is, at bottom, an issue of principle. But would any of us talk of it as "just an issue of principle" and so trivialize it? Surely, the vast majority of Members of Congress would hesitate to talk that way. They, after all, voted for a statute to protect the flag. Hence, I would have hoped that the "What, Me Worry?" argument is not one we would hear from them. (2) The "Wacky Hypotheticals" Argument. The second familiar way of trivializing the amendment's effects is to imagine all sorts of bizarre applications of a law that (supposedly) might be enacted under the amendment. This line of argument purports to play with the terms "flag" and "physically desecrate." Often, the imagined application involves damage to an image (a photo or a depiction) of a flag, especially on clothing-frequently, on a bikini or on underwear. And, often, it involves disrespectful words of gestures directed at an actual flag or the display of flags in certain commercial settings-a favorite hypothetical setting is a used car lot. This line of argument is regularly offered with a snicker and sometimes gets a laugh.

Its obtuseness should be clear. The proposed amendment refers to a "flag" not an "image of a flag." And words or gestures or the flying of a flag can hardly amount to "physical desecration." In the Flag Protection Act of 1989, Congress explicitly defined a "flag" as taking a form "that is commonly displayed.” And it applied only to one who "knowingly mutilates, defaces, physically defiles, burns, maintains on the ground, or tramples" a flag. Why would anyone presume that, under the proposed constitutional amendment, Congress would be less careful and specific?

That_question uncovers the attitude beneath the "Wacky Hypotheticals" argument. For the mocking spirit of the argument suggests disdain not only for people who advocate protection of the American flag. It also depends on an assumption that Congress itself is as wacky-as frivolous and as mean-spirited-as many of the hypotheticals themselves. What's more, it depends on an assumption that, in America, law enforcement officials, courts and juries are no less wacky. If the Constitution as a whole had been inspired by so extreme a disdain for our institutions and our people, could its provisions granting powers to government have been written, much less ratified?

B. Exaggeration

(1) The "Save the Constitution” Argument. Having trivialized the effects of the proposed amendment, its opponents turn to exaggerating those effects. First, they exaggerate the (supposed) effects of "amending the First Amendment." This might, they insist, lead to more amendments that, eventually, might unravel the Bill of Rights and constitutional government altogether. The argument concludes with a ringing

insistence that the people and their elected representatives must not “tinker" or "tamper" or "fool around" with the Constitution.

The claim that the debate is about "amending the First Amendment" sows deep confusion. The truth is that the proposed amendment would not alter "the First Amendment" in the slightest. The First Amendment does not itself forbid protection of the flag. Indeed, for almost two centuries, it was understood to permit flag protection. A 5-4 majority of the Court altered this interpretation, only nine years ago. That very narrow decision is all that would be altered by the proposed amendment. The debate thus is about a measure that would restore to the First Amendment its long-standing meaning, preserving the Amendment from recent "tampering."

Adding to the confusion is the bizarre claim that one amendment, restoring the historical understanding of freedom of speech, will somehow lead down a slippery slope to a slew of others undermining the Bill of Rights or the whole Constitution. A restorative amendment is not, after all, the same thing as an undermining amendment. What's more, the process of amendment is no downhill slide. About 11,000 amendments have been proposed. Only 27-including the Bill of Rights— have been ratified. If there is a "slope", it plainly runs uphill. The scare rhetoric, then, isn't only obtuse. It also manifests disdain for the Congress to which it is addressed.

The greatest disdain manifested by this line of argument, however, is for the Constitution and for constitutional democracy-which it purports to defend. Article V of the Constitution specifically provides for amendment. The use of the amendment process to correct mistaken Court decisions-as it has been used several times before-is vital to maintaining the democratic legitimacy of the Constitution and of judicial review itself. To describe the flag amendment as "tinkering with the Bill of Rights"-when all it does, in fact, is correct a historically aberrant 5-4 decision that turned on the vote of one person appointed to office for life is to exalt a small, unelected, tenured elite at the expense of the principle and practice of constitutional democracy.

(2) The "Censorship" Argument. The second exaggeration of (supposed) effects of the proposed amendment portrays it as inviting censorship. If Congress prohibits individuals from trashing the American flag, opponents say, it will stifle the freedom of speech. In particular, they continue, it will suffocate expression of “unpopular" or "minority" points of view. It will thereby discriminate, they conclude, in favor of a competing point of view. This line of argument is, essentially, the one adopted by a 5-4 majority of the Court.

of

It is, however, mistaken. The argument ignores, first of all, the limited scope laws that the amendment would authorize. Such laws would block no message. They would leave untouched a vast variety of opportunities for self-expression. Indeed, they would even allow expression of contempt for the flag by words-and by deeds short of the "physical" desecration of a flag. Obviously, there must be some limit on permissible conduct. This is so even when the conduct is, in some way, expressive. What's important is this: Plenty of leeway would remain, beyond that narrow limit, for the enjoyment of robust freedom of speech by all.

Secondly, the argument that such laws would impose a limit that discriminates among "competing points of view" misrepresents the nature of the American flag. Our flag does not stand for one "point of view." Ours is not like the flag of Nazi Germany or the Soviet Union-although opponents of the proposed amendment typically make just that comparison. The American flag doesn't stand for one government or one party or one party platform. Instead, it stands for an aspiration to national unity despite—and transcending our differences and our diversity. It doesn't "compete against" contending viewpoints. Rather, it overarches and sponsors their contention. The 5-4 majority on the Court misunderstood the unique nature of our flag. A purpose of the flag amendment is to affirm this uniqueness and, so, correct that mistake.

Thirdly-and most importantly-opponents obtusely ignore the fact that a primary effect of the amendment would be precisely the opposite of the one "predicted" by their scare rhetoric. Far from "censoring" unpopular and minority viewpoints, the amendment would tend to enhance opportunity for effective expression of those viewpoints. A robust system of free speech depends, after all, on maintaining a sense of community. It depends on some agreement that, despite our differences, we are "one," that the problem of any American is "our" problem. Without this much community, why listen to anyone else? Why not just see who can yell loudest? Or push hardest? It is thus for minority and unpopular viewpoints that the aspiration to and respect for the unique symbol of-national unity is thus most important. It helps them get a hearing. The civil rights movement understood this. That is why it displayed the American flag so prominently and so proudly in its great marches of the 1960's.