Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I suggest the absence of a quorum. I ask unanimous consent that the time be divided equally.

Mr. HATCH. I will be happy to yield it back. I understand the other side's time is consumed.

Mr. HATCH. Mr. President, today the Senate must decide whether this is freedom or the abuse of freedom--this right here--evidenced by this picture of the flag being burned by a bunch of antiflag activists. Mr. President, it comes down to this: Will the Senate of the United States confuse liberty with license? Will the Senate of the United States deprive the people of the United States of the right to decide whether they wish to protect their beloved national symbol, Old Glory? Is it not ridiculous that the American people are denied the right to protect their unique national symbol in the law? We live in a time where standards have eroded. Civility and mutual respect--preconditions for the robust views in society--are in decline. Individuals, rights are constantly expanded but responsibilities are shirked and scorned. Absolutes are ridiculed. Values are deemed relative. Nothing is sacred. There are no limits. Anything goes. The commonsense testimony of R. Jack Powell, executive director of the Paralyzed Veterans of America, before the Senate Judiciary Committee in 1989 is appropriate here: Certainly, the idea of society is the banding together of individuals for the mutual protection of each individual. That includes, also, an idea that we have somehow lost in this country, and that is the reciprocal, willing giving up of that unlimited individual freedom so society can be cohesive and work. It would seem that those who want to talk about freedom ought to recognize the right of a society to say that there is a symbol, one symbol, which in standing for this great freedom for everyone of different opinions, different persuasions, different religions, and different backgrounds, society puts beyond the pale to trample with. We all know that the flag is one overriding symbol that unites a diverse people in a way nothing else can or ever will. We have no king. We have no State religion. We have an American flag. Today, the Senate must decide whether enough is enough. Today, the Senate must decide whether the American people will once again have the right to say, if they wish to, that when it comes to this one symbol, the American flag, and one symbol only, we draw the line. The flag protection amendment does not amend the first amendment. It reverses two erroneous decisions of the Supreme Court. In listening to some of my colleagues opposing this amendment, I was struck by how many of them voted for the Biden flag protection statute in 1989. They cannot have it both ways. How can they argue that a statute which bans flag burning does not infringe free speech, and turn around and say an amendment that authorizes a statute banning flag burning does impinge free speech? The suggestion by some opponents that restoring Congress' power to protect the American flag from physical desecration tears at the fabric of liberty is so overblown it is hard to take seriously. These overblown arguments ring particularly hollow because until 1989, 48 States and the Federal Government had flag protection laws. Was there a tear in the fabric of our liberties? To ask that question is to answer it--of course not. Individual rights expanded during that period while 48 States had the right to ban physical desecration of the flag. I should add that the American people have a variety of rights under the Constitution. These rights include a right to amend the Constitution. The amendment process is a difficult one. The Framers did not expect the Constitution to be routinely amended, and it has not been. There are only 27 amendments to the Constitution. But the Framers of the Constitution did not expect the Senate to surrender its judgment on constitutional issues just because the Supreme Court rules a particular way. The amendment process is there, in part, as a check on the Supreme Court and in an important enough cause. This is one of those causes. Let me briefly address the pending amendments to Senate Joint Resolution 31. The McConnell amendment is a killer amendment. It would gut this constitutional amendment. It will completely displace the flag protection amendment should it be approved. A vote for the McConnell amendment is a vote to kill the flag protection amendment. Senators cannot vote for both the McConnell amendment and the flag protection amendment and be serious. I say with great respect the Senator's amendment is a snare and a dilution. We have been down this statutory road before and it is an absolute dead end. The Supreme Court has told us twice that a statute singling out a flag for special protection is based on the communicative value of the flag and, therefore, its misguided view violates the first amendment. Even if one can punish a flag desecrator under a general breach-of- the-peace statute, the McConnell amendment is not a general Federal breach-of-the-peace statute. It singles out flag desecration involved in a breach of the peace. Johnson and Eichman have told us we cannot do that, we cannot single out the flag in that way. The same goes for protecting in a special way only one item of stolen Federal property, a Government-owned flag, or protecting in a special way only one item, a stolen flag desecrated on Federal property. We all know why we would pass such a statute. Do any of my colleagues really believe we are going to fool the Supreme Court? Many of my colleagues, in good faith, voted for the Biden statute and the Court would not buy it. The Court took less than 30 days after oral argument and less than eight pages to throw the statute out, as they will this one. They will do exactly the same to the McConnell statute. Even if the McConnell statute is constitutional--and it is not, with all respect-- it is totally inadequate. Far from every flag desecration is intended to create a breach of the peace or occurs in a circumstance in which it constitutes fighting words. Of course, many desecrated flags are neither stolen from the Federal Government nor stolen from someone else and desecrated on Federal property. Indeed, most of the desecrations that have occurred in recent years do not fit within the McConnell statute. Just as an illustration of its inadequacy, if the McConnell statute had been on the books in 1989, the Johnson case would have come out exactly the same way. Why? The Supreme Court said that the facts in Johnson do not support Johnson's arrest under either the breach-of-the-peace doctrine or the fighting words doctrine. Moreover, the flag was not stolen from our Federal Government. Finally, the flag was not desecrated on Federal property. So the McConnell statute would not have even reached Johnson, and the case would have come out exactly the same. What, then, is the utility of the McConnell statute, as a practical matter, other than to kill the flag protection amendment? The Biden amendment, on the other hand, insists if we are to protect the flag, we must make criminals out of veterans who write the name of their unit on the flag. If the statute that authorizes this had been enacted at the time, Teddy Roosevelt and his Rough Riders would have been criminals. Why? Because they put the name of their unit on the flag they followed up San Juan Hill, the flag which over 1,000 of their comrades died in protecting. Moreover, the Biden amendment blurs the crucial distinction between our fundamental charter, the Constitution, and a statutory code. Read it. It actually puts a statute into the Constitution and, for the first time, I might add, says Congress can vote up or down on it if it wishes. We have not done that in the 206 years during which we have lived under the Constitution. We cannot do that to our Constitution today. This same amendment was rejected 93 to 7 in 1990. It has not improved with age. The two amendments by Senator Hollings on the balanced budget and campaign finance reform are not relevant to the flag protection amendment and therefore are subject to a point of order. They should be debated and voted on at some other time, but do not destroy the flag amendment because of irrelevant matters on this occasion. So, I urge my colleagues to support the flag protection amendment and reject the other amendments to be offered here today. I reserve the remainder of our time and ask any time be divided equally.

Mr. HATCH. I yield 5 minutes to the distinguished Senator from Wyoming.

Mr. HATCH. Mr. President, the July 24, 1995, Washington Post published a letter from Donald D. Irvin of Fairfax, VA. He wrote: It is regrettable that a constitutional amendment to protect the flag is necessary as a way to express the will of the people in response to the misconception of the Supreme Court. But this is hardly the first time that this has had to be done. For example, the Dred Scott decision had to be corrected by the 13th and 14th amendments. Neither should have been necessary, but while the Supreme Court is an indispensable branch of government, on occasion the people have to ``explain'' the Constitution to it. Although it is not incorporated within the text of the Constitution itself, Americans cite the pledge of allegiance to the flag ``and to the republic for which it stands.'' The republic is based upon the Constitution, which all naturalized citizens and those serving in military and official positions are sworn to defend. While native-born citizens are not otherwise required formally to make such an oath or to pledge allegiance to the flag--and indeed are free to refuse to do either without legal sanction--neither should they be free physically to desecrate the ultimate symbol of the Nation. . . . There always will be a few demented souls who may desecrate the flag or violate any law. But arcane legal theories aside, too many people have sacrificed their lives for this country so that the rest of us can live free for us not to honor their memory and our allegiance to the republic by expressing through our highest standard of man-made law that Americans will not tolerate the wanton desecration of the one symbol ``for which it stands.'' I urge my colleagues to heed the commonsense voices of the American people and send this amendment to the States. Common Sense Mr. President, I know there are lawyers and nonlawyers on both sides of the issue before us. But there has been a fair amount of discussion of legal principles involved in the flag protection debate. Frankly, lawyers sometimes make matters more complicated than they really are. That is one way lawyers drive up their market value. Sometimes a healthy dose of common sense goes much farther than lawyer talk in illuminating an issue. In his trenchant dissent in the Texas versus Johnson case in 1989, Justice John Paul Stevens put the same thought this way: The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for--and our history demonstrates that they are--it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration. [491 U.S. at 439]. In other words, denying the American people the right to protect their flag defies common sense. Now, I wish we did not have to do this by constitutional amendment. We should not have to do so to ensure that the people can protect their flag. I, like Earl Warren, Abe Fortas, Hugo Black, and Justice Stevens, believe the Constitution empowers Congress to protect the flag from physical desecration. But the Supreme Court twice has made clear that the statutory protection of the flag--because it is the flag--will be struck down under its interpretation of the Constitution. We have no choice here. Once the Supreme Court, by the narrowest of margins--5 to 4--orders us otherwise, and slams the door on us--and they did so twice--only the people can reverse that decision. And, in this process as prescribed under Article V of the Constitution, it is now up to the Senate to give the American people the opportunity to do so, if they so choose. By sending this amendment to the States for ratification, the Senate opens the door to no other amendment, or statute, precisely because the flag is unique. There is no slippery slope here. The flag protection amendment is limited to authorizing the Federal Government to prohibit physical desecration of a single object, the American flag. It thus would not serve as a precedent for any legislation or constitutional amendment on any other subject or mode of conduct, precisely because the flag is unique. Moreover, the difficulty in amending the Constitution serves as a powerful check on any effort to reach other conduct, let alone speech which the Supreme Court has determined is protected by the first amendment. This amendment does not allow Congress to prohibit any thought or point of view, but rather one narrow method of dramatizing that thought or viewpoint--by prohibiting one form of conduct; regulating action, not speech. No speech and no conduct, other than physical desecration of the American flag, can be regulated under legislation that would be authorized by the amendment. As former Assistant Attorney General Charles J. Cooper testified: . . . if prohibiting flag desecration would place us on [a slippery slope of restrictions on constitutional protection of expression for the thought we hate,] we have been on it for a long time. The sole purpose of the Flag Protection Amendment is to restore the constitutional status quo ante Johnson, a time when 48 states, the Congress, and four Justices of the Supreme Court believed that the legislation prohibiting flag desecration was entirely consistent with the First Amendment. And that widespread constitutional judgment was not of recent origin, it stretched back about 100 years in some states. During that long period before Johnson, when flag desecration was universally criminalized, we did not descend on this purported slippery slope into governmental suppression of unpopular speech. The constitutional calm that preceded the Johnson case would not have been interrupted, I submit, if a single vote in the majority has been cast the other way, and flag desecration statutes had been upheld. Nor will it be interrupted, in my view, if the Flag Protection Amendment is passed and ratified. That is the testimony of Charles J. Cooper, who, of course, was Assistant Attorney General of the United States, and is one of the leading constitutional experts here in Washington. Mr. President, this is an extremely important issue. This issue will determine whether the United States wants to return to the values of protecting its national symbol the way it should be. Should we pass this amendment today by the requisite 66 votes, there being only 99 Members of the Senate at present, this amendment would then be submitted to the States. We will leave it up to the people as to whether or not they want this amendment. My personal belief is that they will ratify this amendment. Three-quarters of the States, if not all of the States, will ratify this amendment so fast our heads will be spinning. I think the people want this. The polls show they want it. Although I do not believe we should do things just because the polls show it, in this case the polls show that the American people understand that this is a value that they want to maintain and uphold, and rightly so. This is a very important value, and, should we pass this amendment today, we will submit it to the States. And those issues of values, those issues of right and wrong, will once again be debated all over this country. It will be a very, very healthy thing in 1995 and 1996 to have these issues debated 207, years after we thought we were establishing values and virtue through the Constitution of the United States. In all honesty, that debate needs to take place. It will be a much more effective debate, I think, than we have held here on the floor of the U.S. Senate. I believe it is one that is long overdue, and it could lead to a debate on other values in our society--other principles of good versus bad. I think it would be beneficial to the country to start reexamining some of these things, some of the permissive things, that we have allowed to occur in this society that have really denigrated our society. Whether to restore legal protection for our national symbol, the American flag, is an issue of such great constitutional import, one that will help us to start that debate. I hope that our colleagues will vote for it today. I can accept whatever my colleagues do. But I hope they will vote for it. Should we pass it, the great debate on values will start. Should we not pass it, come 1997 we will be back with it again, and I think we will pass it at that time. But let us hope we can pass it today. I intend to do everything I can to see that it is passed. Might I ask the Chair how much time remains on both sides?

Mr. HATCH

Mr. HATCH. Mr. President, while they are resolving this difficulty, let me say a few words about the flag amendment. I ask unanimous consent I be given a few minutes to say a few words about the flag amendment.

Mr. HATCH. Mr. President, I am, of course, disappointed by the outcome. But I predicted at the beginning unless we got three more Democrats, we were not going to be able to prevail, and we could not do that. I respect the decision of the Senate. I congratulate those on the other side of the issue. In particular, I congratulate the most important leader of the opposition. Of course, that is President Clinton. President Clinton won this battle. The American people, in my opinion, lost. The President's strong, uncompromising opposition to any amendment protecting the flag whatsoever, expressed on June 6, in testimony before the Constitutional Subcommittee, was too much for the Citizens Flag Alliance and those of us here to overcome. Had the President supported this amendment, I have no doubt, we would have prevailed. I do not think there is any question about it. So I congratulate the President on this victory. I assure my colleagues, this amendment is not going to go away. It is a simple amendment. It is a constitutional amendment. It is written in good constitutional form. Frankly, it is not going to go away. The American people are not going to allow it. We will debate it in the next Congress. I hope we have some changes that will enable us to pass it at that time. I want to particularly thank Senator Heflin and Senator Feinstein for their efforts. I also thank chief counsel Winston Lett, counsel Jim Whiddon, and a former Heflin staffer who worked very hard on this, Gregg Butrus, now at the Notre Dame Law School. I also want to express appreciation to Senator Feinstein and her counsel, Jamie Grodsky. On my staff, I want to thank John Yoo, Steven Schlesinger, Jasen Adams, and Mark Disler. These people worked long and hard, very sincerely, on this amendment. This has been not only an important debate but an interesting debate. I think both sides have had a full and fair opportunity to explain their side. I am sorry we lost. On the other hand, we have done the best we can under the circumstances. Unless there is a change in the U.S. Senate, I do not believe we are going to be able to pass this amendment with the current Senate, so we are hoping in the next Congress we will have enough votes to pass it. Be that as it may, it is going to come up again, whether we do or do not, and we are going to keep bringing it up until we pass it and protect the Nation's national symbol. I have to say, anybody who really argues this is a denigration of the first amendment just plain does not understand constitutional law, does not understand the more than 21 cases where we have limited the first amendment, and does not understand that this is, full and simple and very plain, to prevent conduct that is offensive to the flag, offensive to the country, and offensive to almost every citizen, and, frankly, the way they have spoken, to every Senator in the U.S. Senate. I thank the Chair.

Mr. HATCH. Mr. President, I will only take a few moments. I want to thank my colleague for his wonderful remarks. They mean a lot to me, and I have an equally strong feeling toward him and realize that he did this as a matter of principle and conscience. And I could never find fault with people who do that. I naturally differ with him on this particular issue, and I am sure we will have some differences in the future. But by and large we support each other, support our State together in a very, very good way, and I am very proud to serve with him. And I appreciate his service here. He is one of the more articulate, intelligent and hard-working people in this body. I personally feel honored to have him as a partner as we work together in the best interest of Utah and this Nation. So I want to thank him for his kind remarks here today.

Mr. HATCH

Mr. HATCH. Sure.

Mr. HATCH. First of all, I do not think you would find a Boy Scout burning a flag outside a convention hall, even in a dignified fashion.

Mr. HATCH. I presume that Congress would delineate very carefully what type of burning of the flag would be prohibited under the statute. I suspect Congress would also try to narrowly define what really brings contempt upon the American flag. But, in any event, Congress will be able to make that determination. I suspect it would be very narrow. I suspect that there would not be any concern about using representations of the flag as emblems for clothing or articles of clothing, sportswear and so forth, just actions that would bring the flag into contempt.

Mr. HATCH

Mr. HATCH. Will the Senator yield? I ask unanimous consent the distinguished Senator from Illinois be granted 5 minutes, and I ask further unanimous consent I be then recognized to call up an amendment or modification and to speak to that for a few minutes. Then I ask unanimous consent the distinguished Senator from South Carolina be next recognized.

Mr. HATCH. Mr. President, all this amendment does is delete the States from the original amendment. It will become the underlying amendment that others will try to amend. So I ask unanimous consent that the amendment be agreed to. I withhold that.

Mr. HATCH. Mr. President I send an amendment to the desk in the nature of a substitute for and on behalf of myself, Senator Heflin, and Senator Feinstein. I ask for its immediate consideration.

Mr. HATCH. I thank my colleague from Illinois. I do not agree with him, but I thank him. He is ever so gracious. Amendment No. 3094 (Purpose: To strike the authorization with respect to the States)

Mr. HATCH. Let me just say this, Mr. President. I would like to spend a minute or two talking about my friend, Senator Heflin. Let me just ask my colleagues for their indulgence for a few moments. I would like to express my appreciation to my colleague from Alabama, Senator Howell Heflin. This is the Hatch-Heflin amendment and Senator Heflin and his staff have worked very hard in its favor. Many of us know Howell Heflin as a fine lawyer, judge, and Senator. I am not sure my colleagues are aware of another side of the man. I know that others in the Senate served in the military. I know Senator Thurmond, for example, took part in the Normandy invasion and fought in both the European and Pacific theaters. He parachuted behind the lines in those days, and he is a hero to all of us. Howell Heflin won the Silver Star as a Marine officer in World War II and later, in the same conflict, was wounded in the hand and leg. The Birmingham News of October 10, 1944, has quite a story on our colleague, noting that ``he is home again in Alabama to modestly and reluctantly tell the stories of a Marine first lieutenant's not-to-be- envied life in the Pacific.'' Nearly 50 years later, in a 1994 D-day story in the Washington Times, the reporter remarked, ``When discussing these battles, the senator never uses the personal pronoun. It's always `we,' referring to the Marines who fought beside him. He is clearly made uncomfortable when asked to comment on his personal valor.'' You can blame our two staffs, Senator Heflin, and I believe our colleagues and the listening audience should know this about our colleague: This is signed by James Forrestal, Secretary of the Navy, from the citation in presenting the Silver Star to him: For conspicuous gallantry and intrepidity as Commanding Officer of an Assault Platoon attached to a company of the First Battalion, Ninth Marines, Third Marine Division, during the Battle of Piva Forks, Bougainville, Solomon Islands, on November 25, 1943. When his men were subjected to intense fire from hostile mortars and automatic weapons while advancing on a strongly organized and defended Japanese position, First Lieutenant Heflin promptly and skillfully deployed his platoon and courageously led it through difficult jungle terrain under a barrage of grenades and gunfire to the edge of the enemy's position. Directing his troops in a vigorous, prolonged battle, he frequently exposed himself to devastating fire at close range in order to control the attack more effectively and, by his unflinching determination and aggressive fighting spirit, contributed materially to the defeat of the enemy and the attainment of his company's objective. First Lieutenant Heflin's expert leadership and fearless conduct under extremely hazardous conditions were in keeping with the highest traditions of the United States Naval Service. One of his fellow marines from Alabama in the same division, Conrad Fowler, tells a story in the February 12, 1995, Birmingham News. The young Heflin was among the first wave to storm Guam, the year following Bougainville. There, he was wounded as I mentioned earlier, and Mr. Fowler helped evacuate him. Howell was a big guy and we found four of the biggest Marines we could find to carry his stretcher, said Mr. Fowler. The last I saw of them they were going over a hill toward the beach, and Howell was limping along with a stick, and the four Marines were following him, carrying the empty stretcher. Here is the bottom line. We can say, nearly 52 years later, as he approaches the close of his public service next year, that the words used to describe Howell Heflin at the outset of his service to his country have marked the man throughout his life: ``unflinching determination''; ``aggressive fighting spirit''; ``expert leadership''; and, ``fearless conduct.'' I want him to know how much I appreciate working with him in the Senate and on the Judiciary Committee. and, in particular, on this very important amendment that I think would set the tone in this country and would establish a debate on values all over this country that is long overdue. Compromise

Mr. HATCH. It has been agreed to. All right. Then I move to reconsider.

Mr. HATCH. Mr. President, I ask unanimous consent that immediately following the remarks of Senator Kennedy, who will follow Senator Hollings and Senator Byrd, Senator Feinstein be given an opportunity to speak.

Mr. HATCH. I thank my colleagues. Mr. HOLLINGS addressed the Chair.

Mr. HATCH. Having said that, Mr. President, on behalf of Senator Heflin, Senator Feinstein, and myself, what we have offered here is a compromise. It deletes the States from the amendment. Only Congress will be given power to protect the flag, if this amendment is adopted. If the amendment I have offered is adopted, the revised amendment would read as follows: ``The Congress shall have power to prohibit the physical desecration of the flag of the United States.'' This means that only Congress will define the flag of the United States. Only Congress will determine what conduct is illegal. There will not be 50 or 51 different laws protecting the flag, just one. So those who are concerned about a multiplicity of flag protection laws, those who are unwilling to let State legislators handle this issue--the amendment just offered will meet those concerns. We have, frankly, gone a long way with this amendment. Frankly, I did not want to make this concession. Restoring the state of the law prior to the Supreme Court's errors in Johnson and Eichman seems perfectly appropriate to this Senator, and quite a few of my colleagues. But I am faced with the task of trying to assemble 66 votes, and I could not count on those votes with Senate Joint Resolution 31 as introduced. We have a better chance if we limit power to protect the flag to Congress. This would, if ratified, still authorize meaningful protection for the flag. With some reluctance, the American Legion and the Citizens Flag Alliance support the amendment. Sometimes compromise is necessary in order to try to get the votes needed to pass a particular measure. We are trying to gain the necessary support for a flag protection amendment by seeking to delete the States from the amendment. I believe the flag protection amendment supporters in the other body would accept such a compromise. I urge all of the cosponsors and other supporters of Senate Joint Resolution 31 as introduced, to support this amendment. I ask the opponents of Senate Joint Resolution 31 as introduced to bend a little, as well. Let us send a revised amendment to the other body and to the States and offer the flag protection at the Federal level. I also hope that President Clinton will reconsider his opposition to a constitutional amendment protecting. We have gone more than halfway on this. compromise ii Mr. President, under the substitute I have offered, along with Senators Heflin and Feinstein, only Congress can write a statute protecting the American flag. With reluctance, the American Legion and the Citizens Flag Alliance have endorsed this substitute. For those of my colleagues who have been worried about letting the American people have the power to protect the flag through their State legislatures, they need worry no longer. For those of my colleagues who do not trust State legislators to protect the American flag in a reasonable way, their concerns are over with this amendment. My question to those colleagues is this: Do you trust yourselves to write a reasonable statute protecting the American flag? If the amendment is ratified, there are ample safeguards. Here in the Senate, members of the Judiciary Committee on both sides of the aisle are going to be vigilant in writing the statute sent to the floor. The cloture rule provides ample protection to a minority of Senators who disapprove of any such statute pending on the Senate floor. The President can veto a measure he does not like, requiring a two-thirds vote. We already know how difficult it is to try to get such a vote on this issue. Some of my colleagues are concerned about flag bathing suits. This was, in my view, an exaggerated concern at best, but I have not heard any of the congressional supporters of the amendment express a desire to cover bathing suits. Senators Kennedy, Leahy, Simon, and Feingold raised the question in the committee views: ``Would desecration include flying the flag over a brothel?'' That is on page 77 of their views. Since the amendment talks about physical desecration of the flag, this concern was, frankly, totally misplaced to begin with. But since they will have a say in writing the only statute authorized by the substitute amendment, I hope their concerns have been substantially reduced. This is not the time and place to consider what a Federal statute will look like and I have not given it much consideration because it is premature to do so. But I do pledge that we will have fair consideration concerning a proposed statute, if Congress and the States ratify the amendment. Mr. President, we have made a major concession. With the deletion of the States from the amendment, continued opposition to the amendment means just one thing: It is simply not important enough to protect the American flag by amendment, even with one uniform Federal standard throughout the Nation. I hope that some of my colleagues who have opposed this amendment in the past will seriously reconsider their opposition. I think this is a compromise everyone can defend. The notion that physical desecration of the American flag is a fundamental right is an invention of five Supreme Court Justices who made a mistake. If just one Justice had come out the other way, we would not even be on the floor of the Senate debating this issue today. And something else would also be true: The liberties of the American people, including freedom of speech, would be intact. Our liberties seemed to survive the 1 Federal statute and 48 State statutes protecting the flag remarkably well. But to listen to the overwrought, overblown, and misplaced concerns of the critics of the amendment, one would think we were living in the Dark Ages prior to 1989, when the Supreme Court effectively struck them all down. What nonsense. Indeed, the irony is, as I pointed out last Wednesday, during the time these flag protection statutes were put on the books, the parameters of freedom of speech actually expanded in this country. We can protect the flag, preserve our liberties, and give voice to a fundamental value Americans hold dear, protection of the flag that represents them, their ideals, their principles, their history, and their future. One final note, Mr. President. And that is, what is wrong with letting the American people make the determination here? Should three- quarters of the States ratify this amendment, what is wrong with trusting Congress to write a reasonable statute that would determine once and for all what physical desecration is all about? We can do it, and we can do it right without infringing upon scarves or swimming suits or sweaters or ties or any number of other items which can be worn with great pride and belief in the flag of the United States. Mr. President, I ask unanimous consent--and I understand this has been agreed to by both sides--I ask unanimous consent that our amendment, the Hatch-Heflin-Feinstein amendment be agreed to and that it be considered as original text for purposes of further amendment so these other amendments can be considered.

Mr. HATCH. I thank the Senator.

Mr. HATCH. I ask that my unanimous-consent request be agreed to.

Mr. HATCH. I urge the amendment be agreed to.

Mr. HATCH

Mr. HATCH. Mr. President, this amendment, granting Congress power to prohibit physical desecration of the flag, does not amend the first amendment. The flag amendment overturns two Supreme Court decisions which have misconstrued the first amendment. The first amendment's guarantee of freedom of speech has never been deemed absolute. Libel is not protected under the first amendment. Obscenity is not protected under the first amendment. A person cannot blare out his or her political views at 2 o'clock in the morning in a residential neighborhood and claim first amendment protection. Fighting words which provide violence or breaches of the peace are not protected under the first amendment. The view that the first amendment does not disable Congress from prohibiting physical desecration of the flag has been shared by ardent supporters of the first amendment and freedom of expression. In Street v. New York, 394 U.S. 576 (1969), the defendant burned a flag while uttering a political protest. The Court overturned his conviction since the defendant might have been convicted solely because of his words. The Court reserved judgment on whether a conviction for flag burning itself could withstand constitutional scrutiny. [Id. at 581.] Chief Justice Warren dissented, and in so doing, asserted: I believe that the States and the Federal Government do have the power to protect the flag from acts of desecration and disgrace . . . Id. at 605 (Warren, C.J., dissenting). Justice Black--generally regarded as a first amendment ``absolutist''--also dissented and stated: It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American Flag an offense. Id. at 610 (Black, J., dissenting). Justice Fortas agreed with Chief Justice Warren and Justice Black: [T]he states and the Federal Government have the power to protect the flag from acts of desecration committed in public. . . . [T]he flag is a special kind of personality. Its use is traditionally and universally subject to special rules and regulation. . . . A person may ``own'' a flag, but ownership is subject to special burdens and responsibilities. A flag may be property, in a sense; but it is property burdened with peculiar obligations and restrictions. Certainly . . . these special conditions are not per se arbitrary or beyond governmental power under our Constitution. Id. at 615-617 (Fortas, J., dissenting). Prof. Stephen B. Presser of Northwestern Law School testified before the Subcommittee on the Constitution on June 6: The Flag Amendment would not in any way infringe the First Amendment. . . . The Flag Protection Amendment does not forbid the expression of ideas, nor does it foreclose dissent. [Written Testimony of Professor Stephen B. Presser, June 6, 1995 at p. 11] ]Richard Parker, professor of law at Harvard Law School, testified: The proposal would not ``amend the First Amendment.'' Rather, each amendment would be interpreted in light of the other--much as in the case with the guaranties of Freedom of Speech and Equal Protection of the Laws. When the Fourteenth Amendment was proposed, the argument could have been made that congressional power to enforce the Equal Protection Clause might be used to undermine the First Amendment. The courts have seemed able, however, to harmonize the two. The same would be true here. Courts would interpret ``desecration'' and ``flag of the United States'' in light of general values of free speech. They would simply restore one narrow democratic authority. Experience justifies this much confidence in our judicial system. But, we're asked, is `harmonization' possible? If the Johnson and Eichman decisions protecting flag desecration were rooted in established strains of free speech law--as they were--how could an amendment countering those decisions coexist with the First Amendment? First, it's important to keep in mind that free speech law has within it multiple, often competing strains. The dissenting opinions Johnson and Eichman were also rooted in established arguments about the meaning of freedom of speech. Second, even if the general principles invoked by the five Justices in the majority are admirable in general--as I believe they are--that doesn't mean that the proposed amendment would tend to undermine them, so long as it is confined, as it is intended, to mandating a unique exception for a unique symbol of nationhood. Indeed, carving out the exception in a new amendment--rather than through interpretation of the First Amendment itself--best ensures that it will be so confined. Even opponents of the new amendment agree on this point. Third, it's vital to recognize that the proposed amendment is not in general tension with the free speech principle forbidding discrimination against specific `messages' in regulation of speech content. Those who desecrate the flag may be doing so to communicate any number of messages. They may be saying that government is doing too much--or too little--about a particular problem. In fact, they may be burning the flag to protest the behavior of non-governmental, `patriotic' groups and to support efforts of the government to squash those groups. Laws enacted under the proposed amendment would have to apply to all such activity, whatever the specific `point of view.' One, and only one, generalized message could be regulated: `desecration' of the flag itself. And regulation could extend no farther than a ban on one, and only one, mode of doing it: `physical' desecration. Finally, and perhaps most importantly, we mustn't lose sight of the fundamental purpose of the proposed amendment. That purpose is to restore democratic authority to protect the unique symbol of our aspiration to national unity, an aspiration that, I've said, nurtures--rather than undermines--freedom of speech that is ``robust and wide-open. [Written Testimony, Professor Richard D. Parker, June 6, 1995, pages 6-8, footnotes omitted]. In short, Mr. President, there is no conflict between the flag protection amendment and the first amendment--we are only overturning two mistaken Supreme Court decisions. Mrs. FEINSTEIN addressed the Chair.

Mr. HATCH. Will the Senator yield?