Former United States Senator from Ohio
S.J. Res 14,
"A joint resolution proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States."
Senate Judiciary Committee
For those who served in the armed services, we risked our lives because we believed it was our duty to defend our nation. I can tell you that in combat you do not start out thinking about the philosophy of our nation. When you start a run on a ground position from the air, through antiaircraft, or lead a patrol where people are getting shot, you do not think about those philosophical thoughts. It is the survival of the moment that holds your attention. Only later do you think about some of these great philosophical thoughts.
But every last tiny fiber in our flag stands for someone who has given his or her life to defend what it stands for. Many of us here have as many friends in Arlington Cemetery, bearing silent witness to our flag, as we do bearing public witness to it in the world of the living. Maybe that is why I have so little patience, and even less sympathy, for those pathetic and insensitive few who would demean and defile our nation's greatest symbol of sacrifice. They deserve harsh censure.
But, in what I view as their demented ways, they also have my pity because they cannot, apparently, feel the pride and the exhilaration that comes from being called to a purpose larger than ones own self. They cannot feel the pride in our nation and what it stands for, even though not perfect as yet; the pride in a nation whose very strength rests in a guarantee of freedom of expression for every single person, whether that person agrees with the majority, or not. It is a guarantee that some misguided souls exploit for their own egotistical, self-centered purposes.
I believe that the members of this Committee have a special responsibility to recognize that it would be a hollow victory indeed if we preserved the symbol of our freedoms by chipping away at those fundamental freedoms themselves. Let the flag fully represent all the freedoms spelled out in the Bill of Rights, not a partial, watered-down version that alters its protections.
The flag is the nation's most powerful and emotional symbol. It is our most sacred symbol. And it is our most revered symbol. But it is a symbol. It symbolizes the freedoms that we have in this country, but it is not the freedoms themselves. That is why this debate is not between those who love the flag on the one hand and those who do not on the other. No matter how often some try to indicate otherwise, everyone on both sides of this debate loves and respects the flag. The question is, how best to honor it and at the same time not take a chance of defiling what it represents.
Those who have made the ultimate sacrifice, who died following that banner, did not give up their lives for a red, white and blue piece of cloth. They died because they went into harm's way, representing this country and because of their allegiance to the values, the rights and principles represented by that flag and to the Republic for which it stands.
Without a doubt, the most important of those values, rights and principles is individual liberty: The liberty to worship, to think, to express ourselves freely, openly and completely, no matter how out of step those views may be with the opinions of the majority. In that first amendment to the Constitution we talk about freedom of speech, of religion, or the press and right to assemble.
The Bill of Rights was not included in the Constitution. The Bill of Rights was added after the Constitution was passed. Some states refused to ratify the Constitution because it did not have a Bill of Rights defining basic human rights that they wanted this country to stand for. James Madison worked to get a Bill of Rights put together while the Constitution was already in existence.
The Congress passed the first 10 amendments known today as the Bill of Rights. Freedom of speech, freedom of religion, freedom of the press, and freedom of assembly are protected in the First Amendment.
That commitment to freedom is encapsulated and encoded in our Bill of Rights, perhaps the most envied and imitated document anywhere in this world. The Bill of Rights is what makes our country unique. It is what has made us a shining beacon of hope, liberty, of inspiration to oppressed peoples around the world for over 200 years.
In short, it is what makes America, America. Those 10 amendments to the Constitution we call the Bill of Rights have never been changed or altered by one iota, by one word, not a single time in all of American history. That is how our forefathers have looked at the Bill of Rights. There was not a single word of change during any of our foreign wars, and not during recessions or depression or panics. Not a single change when we were going through great national times of trials and tribulations and times of great emotion and anger like the Vietnam era, when flag after flag was burned or desecrated, far more often than they are today. Even during all that time, our first amendment remained unchanged and unchallenged.
The amendment under consideration today goes directly to the issue of freedom of speech. We are talking about freedom of expression. The Supreme Court has held on two separate occasions that no matter how great the majority, the minority, under our Bill of Rights, has the right of expression. That expression is protected by freedom of speech.
Do we want to take a chance on reducing our freedom of speech? What about freedom of the press? Do we want to open even a tiny chance to restrict our ability to assemble peaceably? And do we want to take a chance that we would not be able to petition our government for redress of grievances? Those are the things that are covered in that first amendment, known as the Bill of Rights.
I think there is only one way to weaken the fabric of our country, our unique country, our country that stands as a beacon before other nations around this world and that is to allow the few misguided souls to lessen the freedom that we all share.
One of the most exhilarating things that can ever happen to a man or woman is to be able to represent their country and be called to something, to a purpose larger than themselves. I feel sorry for people who have never had that experience. It is something you cannot really explain.
Of course some may argue that the First Amendment is not and has never been absolute, that we already have restrictions on freedoms of expression and that a prohibition on flag burning would simply be one more? After all, it is said that freedom of speech does not extend to slander, libel, revealing military secrets, or of yelling 'fire' in a crowded theater. That is true. To the extent that flag burning would incite others to violence in response does not constitute a clear and present danger, and that is what the Supreme Court ruled. The difference here is whether it is a clear and present danger that we have every right to try to avert.
I believe that this argument misses a key distinction, and that distinction is that all those restrictions on free speech I just mentioned threaten real and specific harm to other people, harm that would come about because of what the speaker said, not because of what the listeners did.
To say that we should restrict speech or expression that would outrage a majority of listeners or move them to violence is to say that we will tolerate only those kinds of expression that the majority agrees with, or at least does not disagree with too much. That would do nothing less than gut the First Amendment.
What about the argument that flag desecration is an act and is not a form of speech or expression that is protected by the First Amendment? Well, I think that argument is a bit specious. Anybody burning a flag in protest is clearly saying something. They are making a statement by their body language, and what they are doing makes a statement that maybe speaks far, far louder than the words they may be willing to utter on such an occasion.
They are saying something, just the same way as people who picket, or march in protest, or use other forms of symbolic speech expressing themselves. Indeed, if we did not view flag burners as something we find offensive and repugnant, we surely would not be debating their right to do so.
Let me say a word about something that has gotten short shrift in this debate, something we should consider very carefully. I am talking about the practical problems with this amendment. Let us say we pass it, the States pass it, it becomes an amendment, and we change the Constitution. Then what a nightmare we would have enforcing it.
If Congress and States are allowed to prohibit the physical desecration of the flag, how precisely are we defining the flag? We do not have an official flag, as such, with an exact size, type, kind of ink, dyes, or fabric. There is no official flag, as such. So does this amendment refer to only manufactured flags of cloth or nylon of a certain size or description, such as the one we fly over the Capitol? Does it refer to the small paper flags on a stick we hand out to children at political rallies or stick in a cupcake at a banquet? Those flags are often tossed on the floor or in a garbage can at conclusion of an event. How about during the 1976 bicentennial when vendors were selling flag bikini swimsuits for women and boxer shorts for men.
Remember that the proper way to destroy a flag that is old or has become soiled is to burn it. But what if you do it in protest? What was the intent? Every lawyer will tell you that the toughest thing to prove is intent.
I do not know what the courts would do in a case like that. We can go on with all kinds of examples here of how this would be very difficult to administer, and it would be subject to 50 different interpretations. I might be able to do something in Ohio, and I drive across the Ohio River to Kentucky, West Virginia, or Pennsylvania and the same thing might be illegal.
This amendment should be defeated. The dangers from it far outweigh the threat that we have to the flag. I simply do not believe that this is a major problem for this country requiring an amendment to the Constitution of the United States of America.
Our most revered symbol stands for freedom but is not freedom itself. We must not let those who revile our way of life trick us into diminishing our great gift or even take a chance of diminishing our freedoms.