Orrin Hatch

Mr. HATCH

Mr. HATCH. I ask unanimous consent that the distinguished Senator from Alaska, Senator Stevens, be permitted to speak after our friend, the Senator from California.

Mr. HATCH. Mr. President, I thank my colleague from Alaska for his excellent statement and for the continuing great work that he does as a Member of the Senate. I really appreciate him personally and I appreciate his support for this amendment. I might mention that earlier in the day my colleague and friend from Massachusetts said there just are not many flag-burning desecrations, and he cited some statistics that I think are quite wrong. Based on information provided to me by the Congressional Research Service, the number of flags desecrated have been as follows--and keep in mind these are ones that are reported, the ones where we have had a fuss about. This does not begin to cover those desecrated that were not reported: In 1990, at least 20 flags in this country; in 1991, at least 10 flags; in 1992, at least 7 flags; in 1993, at least 3 flags; in 1994, at least 5 flags; for a total of 45 flags between 1990 and 1994. In 1995, there have been over 20 flags so far. Every one of these known flag-burning cases have been covered by the media, so millions of people have been affected by them. Millions of people have seen our national symbol desecrated and held in contempt. Millions of people are beginning to wonder, why don't we have any values in this country? Why don't we stand up for the things that are worthwhile? Why don't we stand up for our national symbol? What is wrong with that? What this amendment would do is allow the Congress of the United States to pass legislation that would protect the flag. What is so wrong about that? It would allow us to do that. We could do whatever we wanted to. If people did not like it, they could vote against it. They could filibuster it, where you have to get 60 votes in the Senate. The President, if he does not like it, has a right to veto it, where you have to get 67 votes in the Senate. It is not like people's rights are being taken away because we pass a constitutional amendment. I wonder if my friend from Massachusetts believes that the Supreme Court has so far construed the first amendment correctly by holding that it does not protect obscenity and child pornography? He was attempting to make the point that this amendment is somehow an unprecedented infringement on the first amendment. With all due respect, that is a joke. Last Friday, I listed 21 instances where the Supreme Court upheld laws which limit speech or conduct which some have argued was protected by the first amendment. What we are considering here is not something new. Some of those cases involved actual speech, including obscenity and limitations on Government speaking. Here, we are talking about offensive conduct, not speech. The Supreme Court, in one of its off days--in fact two off days, when you consider both Johnson and Eichman--decided by a 5 to 4 margin, that this offensive conduct rises to the dignity of free expression. If my friend from Massachusetts thinks it is terrible to interfere under any circumstances with speech or conduct which some might argue is somehow protected by the first amendment, what about laws prohibiting child pornography? What about laws against obscenity? Put aside whether my friend would use the same legal test for determining what is obscenity or child pornography as the Supreme Court presently uses. He may not. But I think he would admit that would not want his children or grandchildren to be buffeted by child pornography. If, after 200-plus years of legal precedent to the contrary, the Supreme Court were to decide, by a 5 to 4 vote, that obscenity is protected by the first amendment, I wonder if some of the people who have argued against this amendment, because they claim it infringes upon the first amendment, would oppose an amendment authorizing the prohibition of the sale and distribution of obscenity or pornography? And if my friend felt that the 5-to-4 decision was wrong, would he view such an amendment as tampering with the Bill of rights, or just overturning a mistaken judicial interpretation of it? Would my friend be demanding on the floor of Congress that supporters of an antiobscenity amendment determine in advance whether this or that hypothetical picture, photograph, or writing would qualify as obscene under the amendment? I doubt it. I sincerely doubt it. I want to say a few words about Senator Biden's content-neutral constitutional amendment, and then I understand my friend from Idaho is here, and also my friend from Kentucky. A few critics of the flag amendment believe that all physical impairments of the integrity of the flag, such as by burning or mutilating, must be made illegal or no such misuse of the flag should be illegal. An exception is provided for disposal of a worn or soiled flag. This all or nothing approach flies in the face of nearly a century of legislative protection of the flag. A content neutral amendment would forbid an American combat veteran from taking an American flag flown in battle and having printed on it the name of his unit and location of specific battles, in honor of his unit, the service his fellow soldiers, and the memory of the lost. Then Assistant Attorney General for Legal Counsel William S. Barr testified before the Senate Judiciary committee August 1, 1989, and brought a certain American flag with him: Now let me give you an example of . . . the kind of result that we get under the [content-neutral approach]. This is the actual flag carried in San Juan Hill. It was carried by the lead unit, the 13th Regiment U.S. Infantry, and they proudly emblazon their name right across the flag, as you see; 1,078 Americans died following this flag up San Juan Hill. . . . Under [a content neutral approach], you can't have regiments put their name on the flag that's defacement . . . (Testimony, Assistant Attorney General William P. Barr, August 1, 1989, at 68). I wish to empower Congress to prohibit the contemptuous or disrespectful physical treatment of the flag. I do not wish to compel Congress to penalize respectful treatment of the flag. A constitutional amendment which would force the American people to treat the placing of the name of a military unit on a flag as the equivalent of placing the words ``Down with the Fascist Federal Government'' or racist remarks on the flag is not what the popular movement for protecting the flag is all about. I respectfully submit that such an approach ignores distinctions well understood by tens of millions of Americans. Moreover, never in the 204 years of the first amendment has the free speech clause been construed as totally ``content neutral.'' Prof. Richard Parker, of Harvard Law School, who believes in ``robust and wide-open'' freedom of speech and that it ought to be more robust than the Supreme Court currently allows in some respects, noted as much in his testimony: . . . Everyone agrees that there must be ``procedural'' parameters of free speech--involving, for example, places and times at which certain modes of expression are permitted. Practically everyone accepts some explicitly ``substantive'' parameters of speech content as well. Indeed, despite talk of ``content-neutrality,'' the following principle of constitutional law is very clear: Government sometimes may sanction you for speaking because of the way the content of what you say affects other people. What is less clear is the shape of this principle. There are few bright lines to define it. The Supreme Court understands the principle to rule out speech that threatens to cause imminent tangible harm: face-to-face fighting words, incitement to violation of law, shouting ``fire'' in a crowded theater. And it does not stop there. It understands the principle, also, to rule out speech that threatens certain intangible, even diffuse, harms. It has, for instance, described obscenity as pollution of the moral ``environment.'' I think he makes some very important points. But what about political speech critical of the Government? Is there not there a bright line protecting that, at least so long as no imminent physical harm is threatened? The answer is: No. The Court has made clear, for instance, that statements criticizing official conduct of a public official may be sanctioned if they are known to be false and damage the reputation of the official. There has been no outcry against this rule. It was set forth by the Warren Court--in an opinion by Justice Brennan, the very opinion that established freedom of speech as `robust and wide-open.' [New York Times v. Sullivan, 376 U.S. 254 (1964)]. It has been reaffirmed ever since. Allowing the Congress to prohibit contemptuous treatment of the American flag does not unravel the first amendment or freedom of speech. Incidentally, I might add that, in order to be truly ``content neutral,'' an amendment must have no exceptions, even for the disposal of a worn or soiled flag. Once such an exception is allowed, as in the Biden amendment, the veneer of content neutrality is stripped away. The Texas versus Johnson majority itself pointedly noted: if we were to hold that a state may forbid flag burning wherever it is likely to endanger the flag's symbolic role, but allow it whenever burning a flag promotes that role--as where, for example, a person ceremoniously burns a dirty flag--we would be saying that when it comes to impairing the flag's physical integrity, the flag itself may be used as a symbol . . . only in one direction . . .'' [491 U.S. at 416- 417]. Of course, if Congress proposes and the States ratify a constitutional amendment with such an exception, the Supreme Court would have to uphold the exception. But the amendment would not be content neutral. The suggestion that a worn or soiled flag is no longer a flag, in an effort to escape the logical inconsistency of a so-called content neutral amendment which would permit an exception for disposal of such a flag, is unavailing. Obviously, a worn or soiled American flag is still a flag, recognizable as such, even if no longer fit for display. biden amendment--odd form Mr. President, I draw to my colleagues' attention the text of the amendment by my friend from Delaware. I say with great respect to my friend, and to my colleagues, you will search the Constitution in vain for anything that looks like this. Even if I agreed with its substance, not in 206 years have we had a statute written right in to the text of the Constitution itself with Congress given no more than a right to vote on it up or down. We have always prided ourselves on distinguishing our fundamental charter from a statutory code. This amendment is a textbook case of blurring that 206-year-old distinction. Mr. President, I notice the distinguished Senator from Idaho is here. I will be happy to yield the floor.

Mr. HATCH

Mr. HATCH. That is correct. All the amendment will say, should it be enacted tomorrow, is: ``The Congress shall have power to prohibit the physical desecration of the flag of the United States,'' which would leave it up to Congress to enact a statute later, if Congress so chooses to do.

Mr. HATCH. If the Senator would please state that again. I am sorry.

Mr. HATCH. Let us say we have a flag that is soiled or otherwise ready for destruction being burned in a dignified fashion.

Mr. HATCH. We know, from the Congressional Research Service, of at least 45 flags that have been desecrated between 1990 and 1994, and in this year alone there have been over 20 additional desecrations. Now, those numbers represent only part of the problem. Because, as the Senator from Rhode Island knows, millions of people see reports on television and in other news media of every flag that is burned or desecrated. So each flag burning or desecration affects millions and millions of people across this country.

Mr. HATCH. There may have been many more, but three that the Congressional Research Service knows about. Millions of people, we believe, were informed of those three flags that were burned, and millions of people were offended by it.

Mr. HATCH. Whatever Congress calls it. Whatever Congress would decide to do. I suspect that Congress would pass a fairly narrow statute.

Mr. HATCH. Only where the flag is brought into contempt, where people deliberately, or contemptuously treat it in a destructive manner.

Mr. HATCH. Excuse me. We certainly would make exceptions for soiled or damaged flags that do need to be destroyed.

Mr. HATCH. 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? Forty-nine State legislatures have called for a flag protection amendment. By a strong, bipartisan 312-120 vote, the other body has passed an amendment. So it comes down to each individual Senator, no doubt about it. I will offer an amendment removing the States from the constitutional amendment. Only Congress will have the power to protect the flag. All of the concerns about conflicting or different State laws will not apply to the amendment that I, Senator Heflin, Senator Feinstein, and others will ask you to support. We are going more than halfway to meet the concerns of critics. I think it is time for opponents of the amendment to join with us in offering protection of the American flag at the Federal level and to send the revised amendment to the other body where I am sure it will be accepted. The words of Justice John Paul Stevens, in his dissent in the Texas versus Johnson decision, put it well: 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 Philippines 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]. Put somewhat differently, is it not ridiculous that the American people are denied the right to protect their unique national symbol in the law? If my colleagues step back from all the legal talk on both sides of this issue, I ask, ``Is there not room for a little common sense on this issue? Does the law have to be totally divorced from common sense?'' We live in a time when standards have eroded. My colleagues can see this erosion in the movies they, their children, and their grandchildren can watch. I am aware that our colleagues, Senators Lieberman and Nunn, have expressed concerns about the erosion of standards in some aspects of daytime television. We all know the kind of lyrics our children can listen to. Civility and mutual respect--preconditions for the robust expression of diverse views in society--are in decline. Individual 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. It is ironic that a recent example of this trend involves the physical desecration of the American flag. In Oklahoma this year, a 17- year-old youth stopped at a convenience store and used a full-size American flag to clean oil from his car's dipstick. A veteran saw it; the individual was arrested, but, of course, he will not be charged and prosecuted. When the veteran told the youngster he should not use the flag for that purpose, he replied that he could do whatever he wanted. I realize, of course, that we pride ourselves on our freedom in the United States. I also understand that the I-can-do-anything-I-want attitude has a legitimate appeal, up to a point, to many Americans, including me. But we all know that freedom has its limits. We all know that there is a difference between liberty and license. I might add that the veteran who witnessed the use of the flag to wipe a car's dipstick, upon learning that the individual would not be charged, said, ``you go into battle behind the American flag. There has got to be a way to protect this symbol.'' This Oklahoma episode reminds me of the commonsense testimony of R. Jack Powell, executive director of the Paralyzed Veterans of America, before the Senate Judiciary Committee in 1989: The members of Paralyzed Veterans of America, all of whom have incurred catastrophic spinal cord injury or dysfunction, have shared the ultimate experience of citizenship under the flag: serving in defense of our Nation. The flag, for us, embodies that service and that sacrifice as a symbol of all the freedoms we cherish, including the First Amendment right of free speech and expression. Curiously, the Supreme Court in rendering its decision [in Texas v. Johnson] could not clearly ascertain how to determine whether the flag was a `symbol' that was `sufficiently special to warrant . . . unique status.' In our opinion and from our experience, there is no question as to the unique status and singular position the flag holds as the symbol of freedom, our Constitution and our Nation. As such it must be defended and provided special protection under the law. I am concerned that there is some impression, at least in the media and by some others that are around, that the idea of supporting the flag is some idea of just right- wing conservatives, and I have heard some Senators say, those veteran organizations, and that kind of thing. In fact, the flag is the symbol of a constitution that allows Mr. Johnson to express his opinion. So, to destroy that symbol is again a step to destroy the idea that there is one nation on earth that allows their people to express their opinions whether they happen to be socialist opinions or neo- Nazi opinions or republican opinions. Mr. Powell then goes on to say something that is so very apt, whether it is to the young man who wiped his car's dipstick with the American flag, or to the American Civil Liberties Union, or to an intemperate American Bar Association whose leader foolishly and wildly questioned the patriotism of flag amendment supporters. Indeed, Mr. Powell's next words say something important to all of us. Here is what else he said: 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 unlimited individual freedom so that society can be cohesive and can work. It would deem 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. [September 13, 1989 at 432-437]. We seek to teach our children a pride and love of country--a pride that will serve as the basis of good citizenship, and for sacrifice in our country's interests, perhaps even the ultimate sacrifice. We hope our children will feel connected to the diverse people who are their fellow citizens. We ask our schoolchildren--we ask them, we do not compel them--to pledge allegiance to the flag. But five members of the Supreme Court dictate that we must tell them that the very same flag is unworthy of legal protection when it is treated in the most vile, disrespectful, and contemptuous manner. We also have a very diverse country. We all know the flag is the one overriding symbol that unites a diverse people in a way nothing else can, or ever will. We have no king, we threw him out over 200 years ago. We have no State religion. We have the American flag. I have to take exception when a few of my colleagues ask why we are taking time to consider this amendment. Ask the American Legion, the Veterans of Foreign Wars, the Gold Star Wives of America, and the millions of members in the organizations in the Citizens Flag Alliance why they brought us this proposal and why they asked us to debate it. Mr. President, we are debating legislation these Americans consider a high priority. I hope that opponents of this measure would not argue that this citizen-initiated effort is unworthy of debate in this body. I suggest to my colleagues that we can, in fact, get all of our work done, including this amendment. Now, let us clarify again this point: 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 miss this point and talk about how we cannot amend the Bill of Rights or infringe on free speech, 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 that an amendment which authorizes a statute banning flag burning does infringe free speech? Some of my colleagues have said, I regret that the Supreme Court ruled the way it did. But now that it has, we cannot do anything about it. Even though it is difficult to think of flag burning as speech rather than conduct, since the Court says so, to override the Court is to override this newly minted so-called constitutional right. In my view, this concedes too much to the judiciary. The Supreme Court is not infallible. Its Dred Scott decision is just one example of its fallibility. Let me pose a question to my colleagues. Let us suppose that the year is 1900. A few years earlier, the Supreme Court had interpreted a very crucial part of the Constitution, the equal protection clause of the 14th amendment. In its 8-1 Plessy versus Ferguson decision, the Court had ruled that separate-but-equal is equal. The Constitution only requires separate-but-equal public transportation and public education. We all know that is not what the equal protection clause means. Suppose the other body, in 1900, had already voted 312-120 to pass a constitutional amendment which says that no State shall deny equal access to the same public transportation, public education, and other public benefits because of race or color. Would any of my colleagues be arguing, oh, we cannot pass that amendment, that would be amending the sacred 14th amendment? Would they say, we wish the Court had ruled differently, but, the Court voted 8-1 that separate-but-equal is equal, so that must be what the 14th amendment means? Of course not. Would they argue that the amendment I just mentioned amends the 14th amendment? Or would they admit it just overturns a deeply erroneous decision of the Supreme Court misconstruing the equal protection clause? And would my colleagues vote against an amendment overturning Plessy? I think we all know the answer to these questions. We are faced with a similar situation here. The Court had misconstrued the first amendment. The question is this: Is it important enough to let the American people, through their Congress, decide if they wish to protect the American flag, by overturning erroneous Supreme Court decisions? Let me be clear. I said this last week. Patriots can disagree about this amendment. Opponents of this amendment love the flag no less than the amendment's supporters. There are war heroes on both sides of this issue, including Members of the Senate. Similarly, supporters of this amendment are strong believers in the first amendment. It is simply a question of judgment on this amendment. Is it important enough to give the American people the right to express their traditional values regarding the protection of their flag? Or is it more important to preserve the right to engage in one particular, narrow mode of expression with respect to this one object, and one object only, our flag? That is our choice. As Justice Stevens said in his Johnson dissent, ``sanctioning the public desecration of the flag will tarnish its value * * * That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression--including uttering words critical of the flag--be employed.'' [491 U.S. at 437.] I urge my colleagues to view the constitutional amendment in the same way. The suggestion by some opponent that restoring Congress' power to protect the American flag from physical desecration tears at the fabric of our liberties is so overblown that it is difficult to take seriously. Even one of the principal lawyers some opponents rely upon to make their case, Bruce Fein, himself a strong opponent of the amendment, has said, ``The proposed amendment is a submicroscopic encroachment on free expression that would still leave the United States galaxies beyond any other nation in history in tolerating free speech and press.'' 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. I should add that the American people have a variety of rights under the Constitution. Indeed, if it was not for the right of the people to amend the Constitution, set out in article 5, we would not even have a Bill of Rights in the first place. The amendment process is a difficult one, but it is there. The Framers of the Constitution gave Congress a role in that process. They did not expect us to surrender our judgment on constitutional issues just because the Supreme Court rules a particular way. The Framers did not expect the Constitution to be routinely amended, and it has not been. But the amendment process is there as a check on the Supreme Court in an important enough cause. This is one of those causes. I know we will debate a few amendments today. I know my friend from Kentucky will offer a statute as a complete substitute for the flag protection amendment. The McConnell amendment is a killer amendment. It will completely displace the flag protection amendment. 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. I know my friend from Kentucky reveres the flag. I know he would like to do something to protect it in law. But I say with great respect, his amendment is a snare and a delusion. 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 the flag for special protection is based on the communicative value of the flag and, therefore, in 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 the flag out in that way. The same goes for protecting only one item of stolen Federal property, a Federal Government-owned flag, in a special way, or protecting a stolen flag desecration on Federal property in a special way. 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. They took less than 30 days after oral argument and less than eight pages and threw the statute out. They will do the same to the McConnell statute. The American people know better and they want to see us take action that can really protect the flag. 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 circumstances in which it constitutes fighting words. And, 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. Morever, the flag was not stolen from the Federal Government. Finally, the flag was not desecrated on Federal property. So the McConnell statute, which my friend from Kentucky will offer to replace completely the flag protection amendment, would not have reached Johnson. What, then, is the utility of the McConnell statute, as a practical matter, other than to kill the flag protection amendment? I urge my colleagues to support the substitute flag protection amendment that we will offer and to reject the other amendments to be offered today.

Mr. HATCH. Mr. President, let me just have printed in the Record a few items. I have a letter from Harvard Law School from Richard D. Parker, professor of law, with regard to the McConnell law and why it was unconstitutional and why it would become such by the Supreme Court of the United States as a statute. There is no way the statute could be held constitutional under the decisions of Johnson and Eichman. I ask unanimous consent that the letter be printed in the Record.

Mr. HATCH. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH. I think the hearing was on the all-embracing subject of whether or not we should protect our flag, and the issue of States' rights came up during that hearing. It has been part of the discussion. There is nothing new here. Frankly, I do not think you need a hearing to determine whether you should have 50 States do it or have the Congress. I think we are totally capable right here in the Senate of the United States to make that determination, and I believe that there are those who feel much more confident that this amendment is the way to go than there were those who supported having 50 States each with the power to enact a statute. Keep in mind, the reason we did it that way to begin with--and it was part of the hearings--is because before the Johnson case was decided, we had 48 States plus the Federal Government with flag protection statutes. Frankly, this was not something that was ignored or not considered. So, no, there is nothing new here. We hope this change will bring more people on board, thereby enabling us to pass this amendment. Congress will then have the power to pass a flag protection statute, which will hopefully put a stop to desecration of the flag, which I happen to think is a very, very important thing. I am not alone. The vast majority of Senators believe in this. They should not be denigrated, just as we do not denigrate those who disagree. We think you are patriotic, intelligent Members of the Senate, that you believe in the value of the Constitution, in your own sense, and that you are fighting against this for good principles. Well, we are fighting for it based on our own strongly held principles. This is not a political or partisan issue, as some have suggested. Some of us feel very deeply that the flag needs to be protected by a great Nation, and I am one of them.

Mr. HATCH. I think so.

Mr. HATCH. Sure.

Mr. HATCH. The answer to the distinguished Senator is that because there has been criticism by some of our colleagues that under the amendment, as originally worded, we could have 50 different State statutes, we decided it is appropriate for Congress to be able to make that final determination with respect to protection of what is our national symbol. We therefore agreed to remove the language which would given the State power to enact flag protection statutes, and limit this power to the Congress. But I think the Senator from Rhode Island is neglecting a key fact. The amendment itself does not forbid anything. It merely allows Congress to enact a flag protection statute. In enacting any such statute, the Senate would, of course, take into account the concerns of Senator Chafee and others. If my colleague does not believe that Congress can write a reasonable flag protection law, why should the American people trust us to do anything? So, I think this issue has been considered. I think we all understand it. I think we all know what we are doing here. There is just one simple change in the amendment, and I think it is an appropriate change. I agreed to make that change, even though there are many who would prefer not to do so. So instead of both the Congress and the States having the constitutional authority to enact flag protection laws, under the revised amendment, only Congress would be able to do so. In a very real sense, that is appropriate because we represent the whole country. We would have a uniform flag protection statute. It makes sense, and I would think the distinguished Senator from Rhode Island would be the first to admit that.

Mr. HATCH. Mr. President, my friend quoted the Johnson decision ``just persuade them that they are wrong.'' My goodness, I guess you could apply that to anything. The reason that Gregory Johnson got so much notoriety out of his act of desecration was not because the Texas flag desecration was effectively enforced, it was because the statute was not effectively enforced. It is because he got away with it. Had that statute been effective in preventing his flag desecration, we would never have heard of Gregory Johnson. The reason we have heard of him is because people were outraged by the action that he committed. ``Persuade them they are wrong''--I guess that is what we should do with regard to marijuana usage. Do not treat our children in such a bad way. Persuade them they are wrong. A reason we punish people is to persuade them they are wrong. That is one reason why we have criminal laws. Let me tell you, Gregory Johnson would have learned a lot quicker that he is wrong if he had been punished under that Texas statute, instead of getting away with it as he did. What if we just had 45 murders in this country? Would that mean we would not want to do something about murder? The fact of the matter is, I do not think it is a question of numbers here. It is a question of what is right and what is wrong. I do not intend to be much longer on this. I notice the distinguished Senator from Alabama wants to speak, and I want to listen to him, because, in my opinion, he is one of the people I most admire in this body. I think he can speak with authority on this issue, as much if not more than any other person. But for those who have been so critical about this, let me just ask a few questions. The equal protection clause of the 14th amendment is an extremely important part of our Constitution, as is the first amendment. Let us just assume that the year is 1900, just a few years after the Supreme Court's infamous 8-to-1 decision in Plessy versus Ferguson, interpreting the equal protection clause as permitting separate but equal State facilities. Suppose 49 legislatures had called for a constitutional amendment to overturn that decision, which is what is the case here. Suppose 312 Members of the other body had voted for a constitutional amendment that said, ``No State shall deny any person equal access to the same transportation, education and other public facilities and benefits on the basis of race''? Now this amendment is before the Senate. Would my friend be arguing, in 1900, ``Oh, I deplore and detest the States' separation of races, but the Supreme Court has just told us by an overwhelming majority that the equal protection clause allows separate but equal facilities, so there is nothing Congress can or should do about it''? Would the Senator view the amendment as amending the equal protection clause, or just reversing a tragically erroneous interpretation of that clause? Would my friend be arguing that, as much as he disagrees with Plessy versus Ferguson, the equal protection clause is what the Supreme Court says it is at any one time? Would he vote against the amendment overturning Plessy? Of course not. The same situation is now before us. The Supreme Court has misconstrued the first amendment, after all these years, in 1989--misconstrued it. We do not have to acquiesce in that error. It was a 5-4 decision. They were wrong. Article V gives us a right to amend the Constitution and change that wrongheaded decision, something that has been done before. I cite the 11th amendment, among others. The question is, and I think this is a legitimate question, and in this sense certainly my colleague from Rhode Island raises a good question, and that is: Is it important enough to the Senate to overturn the Supreme Court decisions in Johnson and Eichman? Is it important enough to restore to the American people the power they had for 200 years to protect the national emblem, our American flag? A majority of this body, and hopefully a constitutional majority of this body, say yes, you are doggone right it is. And I am one of them, and so is the distinguished Senator from Alabama. So I yield the floor.

Mr. HATCH. First of all, I think my good friend listened to me earlier, when I talked about actions that bring the flag into contempt, contemptuous conduct with regard to the flag. Of course, I think any statute in this area would make it very clear that the respectful disposal of a soiled or worn out flag, including by burning, would certainly be acceptable.

Mr. HATCH. I doubt any young person or Boy Scout would be doing that. But if they could show that was the case, that they were respectfully disposing of a worn or soiled flag by burning it, I do not think anybody is going to find any fault. Where that was the case, the law would not make a distinction between the Boy Scout and someone who has a beard or was disheveled in appearance. But I would have a difficult time imagining any circumstance in which the public burning of a flag would not be held contemptuous, unless it was literally a Boy Scout procedure whereby they are burning a soiled or otherwise worn flag.

Mr. HATCH. Mr. President, first of all, it is not 45 in 6 years; it is 65 in 5 years. I might add that that is just the Congressional Research Service's figure. That does not include numerous other incidents of flag desecration that may have occurred, and it does not account for the millions of people who have seen our flag desecrated. Some say there is no need for this amendment, that it is not constitutional. Those who say that have not read the Constitution very carefully, particularly article V. Amending the Constitution is the mechanism provided by the Founding Fathers to enable us, among other things, to correct wrongful decisions by the Supreme Court. That is why we have article V in there, to be able to amend the Constitution. By the way, there are 27 amendments to the Constitution, not 26 as stated by Senator Chafee. I might say this to those who say there is no need for the amendment and that we are not faced with many flag desecrations: First, if we fail to provide legal protection to the American flag, it is we, as Members of Congress, who would be devaluating the flag. As Justice Stevens, one of our more liberal Justices, stated in his dissent in Johnson, ``Sanctioning the public desecration of the flag will tarnish its value--both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it.'' One year later, in Eichman, Justice Stevens wrote that the value of the flag as a symbol of the ideas of liberty, equality, and tolerance that Americans have passionately defended throughout our history has already been damaged as a result of this Court's decision to place its stamp of approval on the act of flag burning. We can and should act to correct that damage by restoring to Congress the power to protect our flag against physical desecration. Moreover, the problem of flag desecration remains with us. I have to say that, earlier this year for example, two American flags were burned in Honolulu as a show of sovereignty for what protesters called the Kingdom of Hawaii and as a protest against statehood. There were other flag burnings during protests in Illinois and Pennsylvania. Last year, there was a flag burning during a demonstration against proposition 187 in California. A college student who tried to prevent a second such desecration was beaten by the protesters. In another instance, an American flag was burned during a news conference outside police headquarters in Cleveland, OH, after the U.S. Supreme Court let stand an Ohio Supreme Court ruling overturning the conviction of an individual who burned an American flag during a protest against the Persian Gulf war. Another flag burning occurred during a demonstration against capital punishment in Nebraska. I suspect there are many others. To compare the burning of the flag by a Boy Scout--a soiled or otherwise worn out flag--to that of the bearded Gregory Johnson, is, I think, stretching it just a wee bit. Johnson held the flag in contempt, and there is no doubt that his burning of the flag was done for publicity purposes, so that millions of Americans would see and be affected by how he treated our flag. Perhaps the Senator from Rhode Island sees little difference between the bearded protester burning a flag to start a riot and the Boy Scout who ceremoniously burns a flag to dispose of it, as Boy Scouts are taught to do when flags are soiled or otherwise ruined. Without this amendment they are both treated exactly the same. I find that offensive and reprehensible that we treat the respectful action of a young Boy Scout in burning a soiled or otherwise wornout flag, the same as the conduct--and it is ``action,'' not speech--of a Gregory Johnson. Without this amendment, they are both treated the same. Do my friends who make these kinds of arguments want there to be 60 Gregory Johnsons running around defiling the flag without fear of sanction? They may, but 80 percent of Americans disagree with them, and rightfully so. They may, but 312 of our colleagues over in the House disagree with them, and rightfully so. They may, but 49 State legislatures, including that of the Senator's own home State of Rhode Island, disagree with him. And the other supporters of this amendment, Republicans and Democrats alike, disagree with him as well. I have to respectfully take exception with a few of my colleagues when they ask why we are taking time to consider this amendment when we have so many important things to do. We spend time around here in so many desultory ways that do not amount to a hill of beans; it is about time we spent time on something this significant. Ask the American Legion, the Veterans of Foreign Wars, the Gold Star Wives of America, and the millions of members of organizations who have joined together in the Citizens Flag Alliance why they brought us this proposal, or why they asked us to debate it. Mr. President, we are debating legislation these Americans consider a high priority. There are millions of them. I hope that the opponents of this measure would not argue that this citizen-initiated effort is unworthy of the debate by this august body. I suggest my colleagues would be candid and should get all our work, including this amendment, done. There is nothing that would stop us from doing that; all we have to do is do it. I would also call to my colleagues' attention the fact that it was a very short time after the Bill of Rights was passed that the 11th amendment to the Constitution was added to it. Why? It was added to it to overturn a bad Supreme Court decision, Chism versus Jordan. There have been other amendments to the Constitution overturning bad Supreme Court decisions. I think you have to look long and hard to find a Supreme Court decision much worse than the Johnson and Eichman decisions. They were 5-to-4 decisions, hotly contested. By the way, some of the most liberal people on the Court disagreed with those decisions, such as Justice Stevens. In the past, some of the most liberal Justices on the Court, including Chief Justice Warren, Abe Fortas, Hugo Black, a first amendment absolutist, and Justice Stevens, just to mention four, have all stated we have a right to protect the flag. Now, all of a sudden, because of a wrong-headed 5-to-4 decision, the law is otherwise. Unfortunately, it cannot be changed by mere statute, as some would like to do so. The fact of the matter is, why do we have any concern at all? Why would we take so much time debating this when we ought to pass it without even much of a debate? Let the States determine whether they want to ratify this as an amendment to our Constitution. Amending the Constitution is not a simple task. That is why we only have 27 amendments to the Constitution. Not only do we have to have a two-thirds vote in both bodies of congress, but we then have to get three-quarters of the States to ratify any proposed amendment. The reasons some of my friends do not want this amendment to be adopted are multifold, I am sure. I will not denigrate their reasons or patriotism in the process, but they should not denigrate ours, either, especially since we are in the vast majority, and the vast majority of people in this country feel the way we do. The fact of the matter is that if three-quarters of the States would vote to ratify this, then it ought to be in the Constitution. I'd bet money that three-quarters of the States would ratify this amendment so fast that it would make the head of my dear friend from Rhode Island spin in the process. The fact of the matter is this is what the American people want, and the reason they want it, is because they value the flag of the United States, and devalue those who would hold it in contempt, as they should.

Mr. HATCH. For a correction.

Mr. HATCH. If I can comment----

Mr. HATCH

Mr. HATCH. Mr. President, when the Senate reconvenes at 2:15 p.m., there will be 2 minutes of debate, followed by up to five consecutive rollcall votes relating to Senate Joint Resolution 31. I ask unanimous consent that those votes occur in the order in which they were offered.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.