March 29, 2000 CONGRESSIONAL RECORD — SENATE S1863 drug store shelves. Last year, the drug is a set of foreign policies that means peril from a civil war whose outcome industry spent $24 billion on research that Americans who by drugs that were could not yet be determined. Many and development. U.S. taxpayers also developed in America pay substantially flags flew over various parts of the invest $18 billion every year in the Na- more for those drugs than the same United States and our existence as a tional Institutes of Health, which pro- manufacturers sell—them for in Can- nation was in doubt. President Lincoln vides grants for basic health research. ada or Mexico. I think that is uncon- used the occasion to reflect on a basic Drug companies that are willing to scionable. Those countries are riding feature of American democracy. take on the risk of developing new on our research and development. As Professor James McPherson re- treatments receive tax credits for their The cost issue is one important part cently reminded us, Lincoln observed: research and development costs. of the debate as we talk about modern- ‘‘The world has never had a good defi- Yet when American consumers pick izing the Medicare program to include nition of the word liberty. And the up their prescription at the drugstore a prescription drug benefit. I do think American people just now are much in they pay again for research and devel- that Medicare should be updated and need of one. We all declare for liberty, opment in the form of higher prices. that prescription drugs should be cov- but using the same word we do not Why? Every other developed country ered under the program. Expanding mean the same thing.’’ imposes some form of price control. this benefit, however, must be done re- Through the course of this debate, it Those countries pay for the cost of sponsibly—it must not jeopardize the has seemed to me that all of us here in manufacturing the drug, which is nor- solvency of the current program and this chamber would champion liberty. mal, and maybe some profit; but they that benefits now available to seniors. If any of us were asked, we would say: don’t even come close to paying a fair It is also fairly contentious. Most agree Of course we do. When I listen to the share of the research and development that we should add a drug benefit to debate, I have to conclude that Lin- costs of new drugs developed in the Medicare, however, good people have coln’s wish for a definition on which all United States. honest disagreements about the best of us would agree remains very elusive. So when some Americans get sick, way to do it. Addressing cost is some- Ultimately, the debate over this they can’t afford the medicine they thing we can do now. amendment turns on the scope we need to stay healthy. Instead they go It is no fair to the American con- think proper to give to speech which without or they ration medicine. If sumer to let other countries get away deeply offends us. For Congress to they are able to travel, Americans with policies that make drug compa- limit expression because of its offen- cross the borders to Canada or Mexico nies sell their products cheaper in their sive content is to strike at the heart of to buy for much less, the prescriptions country because they don’t want to pay the First Amendment. Justice Holmes they need to stay healthy. for any of the development costs. It’s wrote that the most imperative prin- I was curious to know just how much not right, and I will work actively to ciple of our Constitution was that it my constituents were savings by trav- see that Americans are not over- protects not just freedom for the eling to Canada. My office recently charged. thought and expression we agree with, conducted an informal study com- Mr. President, I suggest the absence but ‘‘freedom for the thought that we paring the prices of the top ten most of a quorum. hate.’’ He also wrote, that ‘‘we should commonly prescribed prescription The PRESIDING OFFICER. The be eternally vigilant against attempts drugs in several Washington state re- clerk will call the roll. to check the expression of opinions tail drug stores to the price paid in a The assistant legislative clerk pro- that we loathe.’’ typical Canadian pharmacy. I was as- ceeded to call the roll. Justice Robert Jackson made this tounded by the results: on average Mr. LEAHY. Mr. President, I ask point with unsurpassed eloquence in a prices are 64% lower in Canada. unanimous consent that the order for 1943 decision, West Virginia State Here are a few examples: The average the quorum call be rescinded. Board of Education v. Barnette. Unlike cost of 30 pills of Zocor, which used to The PRESIDING OFFICER. Without that small handful of wartime deci- treat high cholesterol, is $76 in our objection, it is so ordered. sions upholding flag burning statutes state, in Canada it costs $38; Premerin, f on which the proponents try to base an estrogen replacement therapy used their claim of an expansive judicial by many women, is $26 in our state and FLAG DESECRATION CONSTITU- TIONAL AMENDMENT—Continued tradition before the Johnson case, the $10.50 just across the border; and a pop- Supreme Court, even in 1943, during the ular new allergy treatment, Claritin, is Mr. LEAHY. Mr. President, in 1791, difficult days of World War II, recog- just $34 in Canada but almost $80 in the State of Vermont, the State that I nized the fundamental tradition of tol- Washington State. am honored to represent, was admitted erance that makes this country strong. During last week’s break, I spent to the Union. Kentucky followed. Con- The Supreme Court in a very difficult time talking with seniors, doctors, hos- gress then saw fit to change the design decision, at the height of world War II pital administrators, and others about of the American flag for a time to in- held that State school boards may not the cost of prescription drugs. All ex- clude 15 stars and 15 stripes, one for compel their teachers and students to pressed their concern about the grow- each State. It was this flag, the one salute the flag. Justice Jackson wrote: recognizing the addition of Vermont to ing amount spent on medicine and the To believe that patriotism will not flourish ability of people to continue to have the Union, that flew over Fort if patriotic ceremonies are voluntary and access to the medication that keeps McHenry in 1814, and inspired Francis spontaneous instead of a compulsory routine them healthy. Scott Key to write the Star Spangled is to make an unflattering estimate of the While this debate has properly fo- Banner. appeal of our institutions to free minds. cused a lot of attention on uninsured Along with Vermonters and many We can have intellectual individualism and seniors and their daily struggle to pay others I find that flag inspirational, as the rich cultural diversities that we owe to for needed medications, the costs of I do the American flag with 48 stars exceptional minds only at the price of occa- under which my family fought in World sional eccentricity and abnormal attitudes. prescription drugs affect every Amer- When they are so harmless to others or to ican—even those with health insurance War II. I remember the great pride my the State as those we deal with here, the coverage. Drug spending is a growing wife and I felt seeing the current Amer- price is not too great. But freedom to differ part of our overall health care costs. ican flag with 50 stars being carried in is not limited to things that do not matter The rising cost of prescription drugs is formation at Paris Island when my much. That would be a mere shadow of free- one of the biggest problems facing youngest son became the newest mem- dom. The test of its substance is the right to health plans, hospitals and others in ber of the U.S. Marine Corps. differ as to things that touch the heart of the the health care field. Fifty years after that famous battle existing order. Obviously, American drug companies that inspired our national anthem in If there is any fixed star in our constitu- tional constellation, it is that no official, have to pay for this huge amount of re- Baltimore’s harbor, President Abraham high or petty, can prescribe what shall be or- search and development and the years Lincoln visited that city as this coun- thodox in politics, nationalism, religion, or that it takes to get these drugs li- try confronted its greatest test. It was other matters of opinion or force citizens to censed. But, what I am outraged about a time in which this nation faced grave confess by word or act their faith therein. S1864 CONGRESSIONAL RECORD — SENATE March 29, 2000 What unifies our country is the vol- I was brought up to believe the first stitution, not the passions of the untary sharing of ideals and commit- amendment is the most important part times. ments. We can do our share toward of our democracy. It allows us to prac- But Vermont’s actions are consistent that end by responding to crude insults tice any religion we want or no religion with our strong tradition of independ- with a responsible action that will jus- if we want. It allows us to say what we ence and commitment to the Bill of tify respect and allegiance that has want, and the Government cannot stop Rights. Indeed, Vermont’s own con- been freely given. Justice Brennan us. stitution is based on our commitment wrote in Johnson: What does that mean? It means we to freedom and our belief that it is best We can imagine no more appropriate re- are going to have diversity—diversity protected by open debate. In fact, sponse to burning a flag than waving one’s in religion, diversity in thought, diver- Vermont did not join the Union until own. sity in speech, diversity that is guaran- the Bill of Rights was ratified and part That is exactly how the American teed and protected in this Nation. And of this country’s fundamental charter. people respond. when you guarantee and protect diver- We are the 14th State in this Union. Respect cannot be coerced. It can sity, then you guarantee and protect a But we waited because we were so pro- only be given voluntarily. Some may democracy, because no real democracy tective of our own liberty. At one time, find it more comfortable to silence dis- exists without diversity. When you ex- we declared ourselves an independent senting voices, but coerced silence can clude and stamp out diversity, then I republic. We wanted to make sure our only create resentment, disrespect, and guarantee, you stamp out democracy, people had their liberties protected. We disunity. You don’t stamp out a bad whether it is the Taliban or any of the in Vermont waited until the Bill of idea by repressing it; you stamp it out totalitarian governments of history. If Rights was part of the Constitution. Following that tradition, this with a better idea. diversity, dissent, and free speech are Vermonter is not going to vote to My better idea is to fly the flag at stamped out, democracy goes with amend the Bill of Rights for the first home, not because the law tells me to; them. not because there is something that American democracy has succeeded time since it was adopted, and cer- says this is what I have to do to show because we have found a way to live tainly not going to be the first respect; I do it because, as an Amer- with that unruly guest with his elbows Vermonter to do that. Vermont sent Matthew Lyon to Con- ican, I want to. on our table of which Voltaire spoke, gress. He cast the decisive vote of I am immensely proud of being one of and to acknowledge acts which are dis- Vermont for the election of Thomas the two Senators who has been given respectful and crude and may, nonethe- Jefferson when that election was the opportunity to represent the State less, be lawful. thrown into the House of Representa- of Vermont. I fly that flag out of pride. We protect dissent because we love tives. He was the same House Member Frankly, I am an ornery enough liberty, not because we oppose liberty, who was the target of a shameful pros- Vermonter that if there were a law but because we love it. The very impi- ecution under the Sedition Act in 1789 that said as a Senator I had to fly that ety of these acts puts us to the test as for comments made in a private letter. flag, I would not do it. I do it because votaries of liberty. I want to do it. Wendell Phillips, the great New Eng- He was locked up. Vermont showed what they thought It is with the same sense of pride land abolitionist, wrote: that I saw my son march in uniform of the Sedition Act. They showed what The community which dares not to protect they thought of trying to stifle free with that flag flying. It is the same its humblest and most hated member in the sense of pride when I see that flag fly- free utterance of his opinion, no matter how speech. Vermont said: Fine, Matthew ing over this Capitol Building every false and hateful, is only a gang of slaves. Lyon is in jail. We will still reelect him day when I drive to work. No man disagreed more vehemently to Congress. And, by God, we did. Why? The French philosopher Voltaire with Wendell Phillips on the burning Because we are saying: Do not trample once remarked that liberty is a guest issues of their day than Senator John on our right of free speech. Vermont served the Nation again in who plants both of his elbows on the C. Calhoun of South Carolina. Yet Sen- the dark days of McCarthyism when I table. I think what he meant by that is ator Calhoun came to much the same think probably one of the most re- that liberty is sometimes an unruly, conclusion in a speech on the Senate markable and praiseworthy actions of even an unmannerly and vulgar guest. floor in 1848—more than 150 years ago. any Vermont Senator, certainly in the Liberty demands we be tolerant even He said: when it is hard to do so. 20th century—the outstanding We have passed through so many difficul- Vermont Senator, Senator Ralph Flan- Our freedoms in this country are pro- ties and dangers without the loss of liberty tected by the constitutional guarantee that we have begun to think that we hold it ders—he stood up for democracy in op- that dissent must be tolerated whether by divine right from heaven itself. But it is position to the repressive tactics of Jo- it is expressed in polite and deferential harder to preserve than it is to obtain lib- seph McCarthy. When so many others tones or in a crude and repugnant man- erty. After years of prosperity, the tenure by ran for cover in both parties—both Re- ner. We are a mature enough political which it is held is but too often forgotten; publicans and Democrats—Senator community to know what every child and I fear, Senators, that such is the case Ralph Flanders of Vermont, the quin- knows: Unlike sticks and stones, words with us. tessential Republican, conservative, a and expressions need not hurt us. It I represent a State that has a proud businessman, came to the floor of the certainly does not justify the loss of tradition of defending liberty, a State Senate and said enough is enough, and rights that protect the liberties of us that encourages open debate. We are asked for the censure of Senator all. the State of the town meeting. You McCarthy. Especially despicable gestures are have never heard open debate, whether Vermont’s is a great tradition that hard to tolerate, but we do so because as a Member of this great body or the we cherish. It is one that I intend to political expression is so central to other legislative body, until you have uphold. what makes America great and what been to a Vermont town meeting. The New York Times had it right protects the rights of each of us to There is debate, there are expressions, earlier this week when it wrote in its speak, to worship as we choose, and to there is heat, and there is often light. editorial, on Monday: petition our Government for redress. I am proud that in 1995, the Vermont If the Senate truly respected the Constitu- As I have said before, I have taken Legislature chose the first amendment tion it is sworn to uphold, it would not be such pride in going to countries with over the temptation to make a politi- trifling with the Bill of Rights and its pre- dictators, countries that require a law cally popular endorsement of a con- cious guarantee of freedom of speech. Yet that is exactly what the Senate is doing as it to protect their flags and their sym- stitutional amendment regarding the considers the so-called flag desecration bols, and in saying: We do not need flag. The Vermont House passed a reso- amendment—a mischievous addition to the such a law in our country because in lution urging respect for the flag and Constitution that would weaken the right of this great Nation of a quarter of a bil- also recognizing the value of protecting free expression by allowing federal laws ban- lion people, the people protect our free speech ‘‘both benign and overtly ning physical desecration of the flag. symbols, not because they are forced to offensive.’’ Our Vermont Attorney Gen- The Washington Post also opposed do so but because they want to do so. eral has urged that we trust the Con- this amendment in a recent editorial. March 29, 2000 CONGRESSIONAL RECORD — SENATE S1865 It noted that flag burning is ‘‘only one tough issue. It is time to say, ‘‘We trust the The proposed amendment to the Con- among many types of offensive expres- American people with their flag’’—with a stitution would do harm to the first sion that the First Amendment has vote against this constitutional amendment. amendment—protections that gird us protected throughout American his- That is what I say: Trust the Amer- all against oppression, especially op- tory.’’ Then they added: ican people. The vast majority of the pression of momentary majority The principle that ‘‘Congress shall make people in this great country are patri- thought. It violates the precept laid no law’’ restricting speech loses much of its otic. They respect the symbols of our down more than 200 years ago that ‘‘he power when exceptions begin turning the Government. There isn’t a rash of flag that would make his own liberty secure ‘‘no’’ into ‘‘only a few.’’ The political points burning around the Nation. You don’t must guard even his enemy from op- senators win by supporting this amendment see people running out to do it because pression.’’ It undercuts the principle are not worth the cost. we respect our flag, we respect our Na- that a free society is a society where it The first amendment says: ‘‘Congress tion, and we don’t need a law to tell us is safe to be unpopular. A nation may shall make no law.’’ It does not say: to do that. In fact, that respect is di- lose its liberties in an instant of im- Congress shall not make a bunch of minished if we are told we have to re- posed orthodoxy. laws or Congress shall not make some spect the symbols of our Government I am sure many of us have read the laws or Congress shall not make little rather than doing it from our heart. letter written in 1787 by Thomas Jeffer- laws versus big laws restricting speech, Through this debate this week, some son in which he observed: proponents of the constitutional or Congress should not make laws on If it were left to me to decide whether we Monday versus Friday restricting amendment expressed their view that should have a government without news- speech. this is a nation in moral decline and papers, or newspapers without a government, It says: ‘‘Congress shall make no that amending the Constitution to I should not hesitate a moment to prefer the law.’’ punish flag burning is thereby justi- latter. I remember being at an oral argu- fied. I disagree. I would not put down For me, presented with the stark ment in the U.S. Supreme Court when the United States that way. I believe choice between an undefiled flag and an I was a young law student, and Hugo this Nation is strong. I believe there is undefiled Bill of Rights, I, too, must Black was saying: I read the Constitu- far more civic virtue to the American choose the latter. tion, which says ‘‘Congress shall make people than some credit. I know that is If somebody were to cruelly desecrate no laws’’, to mean ‘‘Congress shall the case in my State of Vermont. I the flag I proudly fly at my home, then make no laws.’’ I find it pretty clear. know it when I go on line each week I would replace that flag. I would buy The Chicago Tribune said this: with the children of our State in grade a new flag. But if somebody misplaces, The amendment is a gross overreaction to schools and high schools around changes, or diminishes the Bill of a non-problem. Incidents of flag burning are Vermont answering their questions. I Rights that protects me, protects the exceedingly rare, and they do no harm be- sense a civic pride. I do not sense a other 99 Senators, that protects a quar- yond causing legitimate disgust among pa- moral decline. I sense a great nation ter of a billion Americans, I can’t re- triotic Americans. Disgust, however, is not moving into an even greater century. place that. I can’t go to the store and an adequate reason to take the extraor- I am not a fan of what in some quar- dinary step of altering the nation’s founding buy a new Bill of Rights. I cannot start ters passes for culture nowadays, but the process of 200 years ago over again. document—and altering it to curtail one of let us not have a constitutional amend- our most fundamental liberties. I cannot go back and say, because we ment to lash out at crude cultural in- have spent 200 years growing and ma- So many times I read editorials from fluences. Let us discuss the issue of turing as a nation in protecting our the Washington Times, especially those civic virtue. In fact, we in the Senate rights under the Bill of Rights, now we that say that Congress takes, too play a role, an important one, in set- can ignore all that because we have often, a liberal bend. The Washington ting the level of civic virtue in this Na- Times today said this in their edi- changed the Bill of Rights. tion. So maybe a good place to start Don’t diminish it. There are a lot of torial—and they oppose this amend- would be with ourselves and with our things that are unpopular, but we pro- ment—they said they oppose it because institution. It is not just what we say tect them. I think of the debate when ‘‘it would be the only standing con- here that is important; it is what we do I was a young prosecutor. Decisions stitutional amendment to expand—not here. curtail—the power of the federal gov- Instead of telling the American peo- would come down saying you had to ernment.’’ ple, the rest of the American people be- warn criminal suspects of their They went on to say: yond the 100 here, what they can and rights—first the Escobedo case and Laws reflect a nation’s culture and Con- cannot do, maybe we should talk about then the Miranda case. I remember stitution. Both govern a people’s relation- what we do and how we do it. We honor people, both in law enforcement and ship with the government. Sometimes, how- America when we in the Senate do our outside, saying we have to amend the ever, the two collide and the nation’s leaders jobs, when we work on the matters Constitution. Some said we had to im- must decide between expressing the culture peach the whole Supreme Court. We through law or abiding by constitutional re- that can improve the lives of ordinary Americans. have to amend the Constitution. How straints that limit government powers to do dare they say these criminals must be so. . . . The founders adopted the first 10 I began this debate by urging the amendments, now called the Bill of Rights, Senate to conclude action on the juve- warned of their rights? We want to be as more than simply limits on Government’s nile crime conference. I urged the Sen- warned of our rights because we are power, but rather an enumeration of rights ate to vote on increasing the minimum not criminals. But the guilty accused on which Government could not trample. wage, to confirm judges our courts and have to be warned of their rights? What Think of that. They are not saying, people need. We have 77 vacancies a terrible idea. here are some extra powers we have in today. I urged the Senate to pass a Pa- We got through that. What hap- the Government. Rather, they are say- tients’ Bill of Rights and privacy legis- pened? Training of law enforcement got ing no to the Federal Government. lation and other legislation that can a lot better. The police got a lot better, These are rights you cannot step on. make a difference today. Then we set the courts got a lot better, the prosecu- These are rights that belong only to an example for the Nation. As this de- tors got a lot better, and our Nation the American people. These are rights bate concludes and after we vote on got better. Today there are still people that do not belong to a government. this, let us return to that hope and who are arrested or stopped by the po- They do not belong to the Congress, to message. lice who are totally innocent, and they the executive branch, or the judicial Ours is a time of relative peace and have their rights. They can stand on branch. They belong to all of us, today prosperity. We should praise that. Be- those rights. How many times have we a quarter of a billion proud Americans. cause of that, it is certainly not the said: I am an American; I have my The Washington Times went on to time, if there is any, to tinker with the rights? Well, it is true. We have won- say: fundamental framework that has derful rights in this country. That is Conservatives in the Senate should take helped make this country the land of why we are the strongest democracy in this opportunity to burn a flag—the white opportunity and diversity and vitality the world. Let’s not diminish those flag the faint-of-heart seem to fly on every it has been for more than 200 years. rights. S1866 CONGRESSIONAL RECORD — SENATE March 29, 2000 Ours is a powerful constitution, all same arguments in this debate, all of Some of my colleagues contend our the more inspiring because of what it which are just as specious as they were country has achieved greatness in its allows and because we protect each back then. two centuries of existence because they other’s liberty. Let us be good stew- Yet, of those 91 Senators who voted say we value tolerance over all else. ards. Let us leave for our children and to outlaw flag desecration in 1989 to Yes, we are tolerant of everything that our children’s children a constitution prohibit this form of expressive con- is rotten and we are intolerant of many with freedoms as great as those be- duct, 18 who are still here will vote things that are good. They say if we queathed to us by the founders, patri- against the flag protection constitu- pass this constitutional amendment ots and hard-working Americans who tional amendment. In other words, of and then adopt legislation prohibiting preceded us. If we do that, successive the more than 30 opponents of the pro- flag desecration, we will become Iran, generations will bless us, they will posed constitutional amendment, 18 Iraq, North Korea, Libya, Cuba, and a praise us, we will have a stronger na- voted in 1989 to prohibit flag desecra- host of other repressive and dictatorial tion. tion. regimes that do ban desecration of I thank my colleagues for their at- Let me read directly from the joint their respective flags. They even sug- tention and courtesy and yield the resolution, the constitutional resolu- gest we will become like South Africa floor. tion: during apartheid or like Nazi Germany I suggest the absence of a quorum. The Congress shall have power to prohibit if we protect our flag. This argument is The PRESIDING OFFICER. The the physical desecration of the flag of the not only specious, it is absolutely ri- clerk will call the roll. United States. diculous. It is insulting. The legislative clerk proceeded to In other words, we want to give them Indeed, I must say their argument is call the roll. the power so that they can, again, vote full of historical revisionism. The Mr. HATCH. I ask unanimous consent for their beloved statute. They can’t United States of America prohibited that the order for the quorum call be vote for it now because it would be de- desecration of the American flag dur- rescinded. clared unconstitutional again. I think ing the first two centuries of its exist- The PRESIDING OFFICER. Without the limited version presented here, the ence. If this constitutional amendment objection, it is so ordered. McConnell statute, which would not do is adopted and implementing legisla- Mr. HATCH. Mr. President, we have much to begin with, is likewise uncon- tion is passed, the United States of had a productive and educational de- stitutional. America will not somehow become an bate concerning our proposed constitu- The point was that 18 of those who intolerant, repressive, dictatorial po- tional amendment to protect the flag. will vote against the flag protection lice state. No, the United States of We have considered—and defeated by constitutional amendment today, at America’s laws will be just as they overwhelming votes—two significant least 18 of the more than 30 opponents were for over 200 years before this amendments which were aimed at the of this proposed constitutional amend- lousy decision by five people on the Su- heart of this amendment. A clear ma- ment, voted in 1989 to prohibit flag preme Court, versus four, showing it jority of the Senate has its mind made desecration. was hotly contested. Even they weren’t up on this resolution, and it is proper Just yesterday we voted on whether sure what they were doing. that we are now preceding to a vote. to adopt the Flag Protection Act of I find that a sense of elitism is creep- The events of the last three days 1999. That is a more narrow flag dese- ing into the Senate. In fact, I don’t fear could cause one to question the depth cration statute offered by Senator it, I know that is the case. We have of feeling my colleagues have for their MCCONNELL. Now some Senators voted amongst us people who seem to think argument that this flag protection con- against Senator MCCONNELL’s amend- the Senate has more important things stitutional amendment would erode ment because they do not believe flag to do than to listen to, and act on, the free speech rights guaranteed by the desecration is a problem in our society, views of the overwhelming majority of first amendment. Many of these same that it is too trivial of an issue for the American citizens who want the flag Senators have denounced flag desecra- Senate even to consider. Other Sen- protection constitutional amendment. tion and voted for statutes which ators, including myself, voted against I find this elitism profoundly trou- would allegedly protect the flag. In the McConnell amendment because we bling. As a matter of fact, all we are 1989, the Congress responded to the Su- believe that under the Supreme Court asking is for this body to give a two- preme Court’s decision in Texas v. precedents, and given the present com- thirds vote, as the House did, so we can Johnson, which held that State flag position of the Court, it would be submit this to the people in the respec- protection statutes were unconstitu- struck down as the other statutes were. tive States and let them decide once tional, by enacting the Flag Protection Yet 36 Senators voted in favor of the and for all whether or not they want to Act. Ninety-one Senators—let me re- McConnell amendment, a statute pro- protect the flag. peat, 91 Senators—voted in favor of hibiting flag desecration. Clearly, The American people do not believe that statute, which provided that: these 36 Senators do not believe that that the flag of the United States of Whoever knowingly mutilates, defaces, prohibiting flag desecration will erode America is just a piece of cloth or just physically defiles, burns, maintains on the free speech rights guaranteed by the another symbol. The American people ground, or tramples upon any flag of the first amendment. Of these 36 Senators, know that the flag is the embodiment United States shall be fined under this title 30 have indicated they will vote against of our heritage, our liberties, and in- or imprisoned for not more than one year, or the flag protection constitutional deed our sovereignty as a nation, as both. amendment today. Madison indicated—the author of the That was the statute that 91 Sen- I must ask these Senators: Do you Constitution. The American people are ators in this body in 1989 voted for. believe in flag protection or not? Or are deeply offended and morally outraged Clearly, 91 Senators believed in 1989 you just playing political games? If when they see the flag humiliated and that flag desecration should be they do believe in flag protection, they the Government powerless to defend it. stopped; that people who knowingly should vote for this constitutional I have heard both sides of this debate mutilate, deface, physically defile, amendment, which is the only con- cite leaders in the military, and I am burn, or trample upon any flag of the stitutional way of protecting our flag. sure that some of these people who are United States should be prevented from If not, they should have the courage to opposed to our amendment today are engaging in this sort of conduct. Clear- repudiate the votes they cast yester- good people. But let me quote Gen. ly, 91 Senators believed in 1989 that day, in 1995, and in 1989, and to admit Norman Schwarzkopf, commander of prohibiting flag desecration would in that they do not want to prohibit flag U.S. and allied forces during the gulf no way erode free speech rights guaran- desecration in any way. They can’t war. He wrote: teed by the first amendment, and voted have it both ways unless they are just The flag remains the single, preeminent for the bill in response to a Supreme playing politics. I would never accuse connection to each other and to our country. Court decision that had said otherwise. anybody in this body of doing some- Legally sanctioned flag desecration can only I remember those arguments. We can thing as denigrating as playing poli- serve to further undermine this national do this by statute. We have had the tics. unity and identity that must be preserved. March 29, 2000 CONGRESSIONAL RECORD — SENATE S1867 There are tens of thousands of vet- things that force us to be tolerant, as all these veterans throughout this erans living in our country today who they say, of some of the very offensive country who have sacrificed for you have put their lives on the line to de- acts that occur in our society. They and me that we might be free. I would fend our flag and the principles for say we should be tolerant, not to do like to see that happen. If it does not which it stands. Those are the fortu- anything about people who defecate on happen today, don’t worry, we will be nate ones who were not required to our flag or urinate on our flag or burn back because we are not going to quit make the ultimate sacrifice. For every our flag with contempt or trample on until we win on this amendment. When one of those, there is someone who has it. They don’t seem to see any real we do, it will be a great thing for this traded the life of a loved one in ex- problem with that, although they con- country. change for a flag, folded at a funeral. demn it vociferously without doing one I want to thank the dedicated staff of Let’s think about that trade—and doggone thing about changing this cul- the Senate Judiciary Committee for about the people who made that trade ture and letting the American people their hard work on this important pro- for us—before deciding whether the know we are going to stand for some- posed constitutional amendment—S.J. flag is important enough to be ad- thing. Res. 14. In particular, I would like to dressed by the Senate. What better thing can you stand for, commend Alex Dahl, Catherine Camp- Let’s think about the meaning of ma- other than your families—and this is bell, Kyle Sampson, and Ed Haden. jority rule before we dismiss the feel- part of standing for families in my These fine lawyers and professional ings of the American public. Would it book—what better thing to stand for staff spent countless hours getting us really trivialize the Constitution, as than standing up for this national sym- to this point. I also want to thank the some of these critics suggest, to pass bol that unites us and brings us to- committee’s chief counsel, Manus an amendment that is supported by the gether? Just think about it. Cooney, for his assistance and counsel. vast majority of Americans? The Con- In conclusion, the flag amendment is On the minority side, let me acknowl- stitution itself establishes the process the very essence of government by the edge Bruce Cohen for his profes- for its own amendment. It says that people because it reflects the people’s sionalism and spirited opposition. Many other staffers were helpful in- the Constitution will be amended when decision to give Congress a power that cluding Jim Hecht and Stewart two-thirds of the Congress and three- the Supreme Court has taken away on Verdery of our leadership staff. I think fourths of the States want to do so. It a 5–4 vote. The four who voted against these staffers know that this debate does not say that this procedure is re- the five—in other words voted to up- was an important one and one of sig- served for issues that some law profes- hold the right of the Federal Govern- nificance. sors, or even some Senators, think are ment and the States to ban desecration Mr. President, I suggest the absence important. If government by the people of the flag—those four fought very hard of a quorum. means anything, it means that the peo- for their point of view. They happen to The PRESIDING OFFICER. The ple can decide the fundamental ques- be right. clerk will call the roll. tions concerning the checks and bal- I urge all my fellow Senators to do The senior assistant bill clerk pro- ances in our government. It means the the right thing for the American peo- ceeded to call the roll. people can choose whether flag dese- ple. I urge everybody in America to Mr. LEAHY. Mr. President, I ask cration is against the law. The people hold us responsible for not doing so. I unanimous consent that the order for have said they want Congress to pro- am asking the folks out there in Amer- the quorum call be rescinded. tect the American flag. ica to start getting excited about this. The PRESIDING OFFICER. Without Because the flag amendment reflects If we could pass this amendment objection, it is so ordered. the will of the people, I believe passage through the Senate, since the House Mr. MCCAIN. Mr. President, I rise and ratification of this amendment is has already done it, I guarantee we today in support of Senate Joint Reso- ultimately inevitable. It may not pass would create the biggest debate on val- lution 14. It is with great honor and the Senate today, but it will pass the ues this country has seen in years in reverence that I speak in support of Senate. The votes in the past few years every one of our 50 States. If we did this resolution, a bipartisan constitu- demonstrate that momentum—as well that, that alone would justify every- tional amendment to permit Congress as the fulfillment of duty—is on our thing we are talking about today, let to enact legislation prohibiting the side. In 1989, 51 Senators voted for the alone standing up for the greatest sym- physical desecration of the American amendment. That was it, 51. In 1990, bol of any country in the world today. flag. there were 58 votes in favor. In 1995, 63 I think we ought to do it. I hope my Let me explain my support by recall- ing the sacrifice for flag and country of Senators voted for the amendment. fellow Senators will do the right thing a prisoner of war I had the honor of And, today, we hope we will at least and vote for this resolution so the peo- serving with. get that many. We have had some re- ple, through their State legislatures, I spent 51⁄2 years at the Hanoi Hilton. versals, as you have seen. But the trend can decide for themselves whether or In the early years of our imprisonment, of support will continue until we get not they want their elected representa- the North Vietnamese kept us in soli- the 67 needed to pass this resolution tives to enact a law prohibiting the tary confinement of two or three to a and send the constitutional amend- physical desecration of the American cell. In 1971, the North Vietnamese ment to the States for ratification. I flag. moved us from these conditions of iso- personally will not stop fighting for We know we do not have the votes lation into large rooms with as many the flag amendment until it passes the today, but we are not going to stop as 30 to 40 men to a room. This was, as Senate with the requisite two-thirds until this amendment is approved. you can imagine, a wonderful change. vote. Sooner or later we will get enough peo- And it was a direct result of the efforts I came up the hard way. I had to earn ple here who feel strongly enough of millions of Americans, led by people everything I have, and I have earned it about this to get the constitutional like Ross Perot, and Nancy and Ronald the hard way. I learned a trade as a amendment passed. I venture to say, if Reagan, on behalf of a few hundred young man. I worked as a janitor to we could pass this constitutional POW’s, 10,000 miles from home. get through school. I have never been amendment, at least 38 States—and, One of the men who moved into my part of the elite, and I wouldn’t be frankly, I think all 50 States would rat- cell was Mike Christian. Mike came there if I could be. I have to tell you, ify this amendment—I believe the peo- from Selma, Alabama. He didn’t wear a this place is filled with elitism among ple out there would ratify this amend- pair of shoes until he was 13 years old. those who are voting against this ment and we would have more than 80 At 17, he enlisted in the U.S. Navy. He amendment today. percent in the end, and people would later earned a commission. He became Frankly, I get a little tired of the feel very good about it. a Naval aviator, and was shot down and elitism in this country. It is through- I know one thing, those seven Con- captured in 1967. Mike had a keen and out our country, and it is elitism that gressional Medal of Honor recipients deep appreciation for the opportunities is allowing the savaging of our values who were standing with us yesterday as this country—and our military—pro- to occur today in this country. It is the we had a press conference on this, it vide for people who want to work and elite who are basically upholding would make their lives, as it would for want to succeed. S1868 CONGRESSIONAL RECORD — SENATE March 29, 2000 The uniforms we wore in prison con- empty symbolism. I see the issue dif- have in this country, but it is not the free- sisted of a blue short-sleeved shirt ferently. The flag represents each and doms themselves. trousers that looked like pajamas and every one of us, regardless of race, reli- General Colin Powell has said: rubber sandals that were made out of gion or political diversity. Tolerating I would not amend that great shield of de- automobile tires. desecration of the flag is silent acqui- mocracy to hammer a few miscreants. The As part of the change in treatment, escence to the degeneration of the flag will be flying proudly long after they the Vietnamese allowed some prisoners broader values which sustain us as a have slunk away. to receive packages from home. In free and democratic nation—the rami- We should not alter the basic charter some of these packages were hand- fications of which are far more pro- of our liberties just to address the few kerchiefs, scarves and other items of found than mere symbolism. incidences of flag burning in this coun- clothing. Mike got himself a piece of For these reasons, I support this con- try. Despite the attention it receives, white cloth and a piece of red cloth and stitutional amendment to ban flag flag burning is relatively infrequent. fashioned himself a bamboo needle. desecration. I voted for such language According to one expert, there have Over a period of a couple of months, he in previous Congresses, but unfortu- been only 200 reported incidences of sewed the American flag on the inside nately, we have always fallen short of flag burning in the history of our na- of his shirt. the 67 affirmative votes necessary for tion. That amounts to less than one Every afternoon, before we had a approval. case per year. The Congressional Re- bowl of soup, we would hang Mike’s Whenever we send our young men search Service has listed 43 flag inci- shirt on the wall of our cell, and say and women into harm’s way, we must dents between January 1995 and Janu- the Pledge of Allegiance. I know that remember that these same men and ary 1999. saying the Pledge of Allegiance may women have taken a solemn oath Even if this constitutional amend- not seem the most important or mean- which this flag symbolizes. Let us ment were adopted, and the physical ingful part of our day now. But I can honor their commitment and honor our desecration of the flag were prohibited, assure you that—for those men in that great nation. I urge my colleagues to it would not necessarily yield the in- stark prison cell—it was indeed the support the flag protection amend- tended results: the preservation of our most important and meaningful event ment. glorious symbol. of our day. Mr. LEVIN. Mr. President, I cannot As the Port Huron Times Herald sug- One day, the Vietnamese searched support the proposed constitutional gested on June 26, 1999, flag desecration our cell and discovered Mike’s shirt amendment. may not necessarily be flag burning, with the flag sewn inside, and removed The American flag is the premier but the trivialization of the flag: it. That evening they returned, opened icon of our national freedom. It is an How glorifying is it to see the Stars and the door of the cell, called for Mike irreplaceable reminder of liberty, sac- Stripes emblazoned on paper napkins des- Christian to come out, closed the door rifice, and patriotism. To deliberately tined to be smeared with ketchup and bar- of the cell, and for the benefit of all of desecrate or burn a flag is an insult to becue sauce and tossed in a trash can? us, beat Mike Christian severely. anyone who has fought to defend it. How respectful is it to wrap ourselves in Old Glory beach towels? Sip our coffee from Then they opened the door of the cell But to deliberately weaken the First red, white and blue mugs? Start our car from and threw him back inside. He was not Amendment rights of all Americans a flag-emblazoned key chain? in good shape. We tried to comfort and cannot be the answer to those who at- We shouldn’t worry about people burning take care of him as well as we could. tack a symbol of freedom. the flag. It just doesn’t happen. We should The cell in which we lived had a con- We love our flag for obvious reasons, worry about trivializing a glorious symbol crete slab in the middle on which we and true Americans treat it with re- into something as meaningless as a paper slept. Four naked light bulbs hung in spect. A person who destroys such an napkin. each corner of the room. important symbol should face the I oppose the proposed constitutional After things quieted down, I went to scorn of all decent women and men. amendment because it would amend lie down to go to sleep. As I did, I hap- But we should not allow the misguided our Bill of Rights for the first time, pened to look in the corner of the actions of a few individuals to jeop- but I do support a statutory prohibi- room. Sitting there beneath that dim ardize the rights and freedoms of all tion on flag desecration. The McCon- light bulb, with a piece of white cloth, Americans. nell-Conrad-Dorgan statutory approach a piece of red cloth, another shirt and The Supreme Court has ruled that is preferable because it provides pro- his bamboo needle, was my friend Mike such an attack on the flag is a pro- tection of the flag through enactment Christian, sitting there, with his eyes tected form of speech under the First of a statute, and subsequently, does almost shut from his beating, making Amendment to the Constitution. not weaken our First Amendment free- another American flag. He was not If we pass this amendment, and the doms. making that flag because it made Mike States ratify it, we alter the Bill of If we love the flag, we will not only Christian feel better. He was making Rights for the first time in our nation’s preserve the sanctity of the cloth, but that flag because he knew how impor- history. For more than 210 years, the the freedoms for which it stands. No tant it was for us to be able to pledge Bill of Rights—which protects our matter how abhorrent the action of our allegiance to our flag and our coun- most basic freedoms—has served us flag burning may be, I see great danger try. well. Although I love the flag, I also in amending the Bill of Rights and cur- I believe we have an inviolable duty love the Bill of Rights and the Con- tailing freedoms enumerated in the to protect the right of free speech—one stitution. When we pledge allegiance to Constitution, the very documents that of our most precious inalienable rights the flag, in the same breath, we pledge give our flag its meaning. and the linchpin of a healthy democ- allegiance to the Republic for which it Mr. MURKOWSKI. Mr. President, I racy. I do not believe, however, that stands. rise as an original co-sponsor of S.J. guaranteeing respect for our national Mr. President, Senator John Glenn, a Res. 14, a resolution proposing that the symbol by prohibiting ‘‘acts’’ of dese- true American hero, reflected these Constitution be amended to permit cration impinges on political ‘‘speech.’’ concerns in his testimony before the Congress to enact statutes to protect As long as citizens are free to speak Judiciary Committee. He said: against the physical desecration of the out on any matter and from whatever [I]t would be a hollow victory indeed if we American flag. Although it is rare that point of view they wish, as our fore- preserved the symbol of our freedoms by I support amending our Constitution, fathers intended, it does not seem bur- chipping away at those fundamental free- in this instance the Supreme Court has densome to me that we accord some doms themselves. Let the flag fully represent made clear that a federal statute is in- modicum of respect to the symbol of all the freedoms spelled out in the Bill of capable of protecting the national sym- those precious freedoms for which so Rights, not a partial, watered-down version bol of America. that alters its protections. many of our countrymen have laid The flag is the nation’s most powerful and There is no doubt in my mind that down their lives. emotional symbol. It is our most sacred sym- every single Member of the Senate ab- Some view these efforts to protect bol. And it is our most revered symbol. But hors the idea that someone would dese- the flag as political demagoguery or is it a symbol. It symbolizes the freedoms we crate the American flag. Yet the vote March 29, 2000 CONGRESSIONAL RECORD — SENATE S1869 on this amendment will be far from would suggest that the spray painter’s first time ever in a manner that would unanimous. That is because many of first amendment rights had somehow restrict, rather than expand, individual my colleagues believe that adoption of been invaded. liberties. In my view, however great a this amendment somehow represents Yet, I ask the question: What is the symbol the Flag is, our Constitution an attack on the First Amendment’s difference between barring someone and its Bill of Rights are all that and guarantee of freedom of speech. In my from desecrating the LINCOLN Memo- more. More than a symbol of liberty, view, this amendment in no way rial and barring someone from dese- they are liberty’s real guardian and its threatens the freedoms embodied in the crating the American flag? Why are the true protector. They are not only what First Amendment. marble and mortar of the Memorial unites us, but also what keeps our The freedom of speech that is guaran- more important than the intangible more than 200-year-old experiment in teed in the first amendment of the Con- values represented by the American self-government working. They are the stitution is not unlimited. The Su- Flag? Does it make a difference that best the Founders of this great nation preme Court has long recognized that the American taxpayer paid for the left to us—a lasting testament to the the law must strike a balance between construction and upkeep of the Memo- Framers’ brilliant insight that for any society’s and government’s interest rial and therefore as public property an people to remain truly free and capable and the interests of the individual. act of desecration is actionable? of self-government, that there must be More often than not, the Court has I do not think that the payment of some limits to what the State can do come down on the side of the indi- taxes to construct and maintain the to regulate the speech and political be- vidual. However, the Court has recog- Memorial should make a difference. havior of its citizens. The Flag is an nized that society’s interest in public Are we to compare the payment of important symbol, but the Bill of safety outweighs an individual’s right taxes to construct a Memorial with the Rights is what the Flag symbolizes. We to freely shout ‘‘Fire’’ in a crowded sacrifice of the hundreds of thousands must be extremely cautious in altering theater. The Court has balanced soci- of men and women who fought in wars the freedoms that this great document ety’s interest in national security with over two centuries to preserve the guarantees, lest we diminish the ideals a speaker’s interest in disclosure of democratic ideals embodied in our Con- for which our Flag stands. state secrets and has upheld restric- stitution? I think not. My former colleague Senator John tions on such speech. As I said earlier, I am not a frequent Glenn—an individual whose patriotism By this amendment, we are not chal- supporter of amending the Constitu- and love of country none could doubt— lenging the first amendment’s guar- tion. I would prefer that we adopted a expressed this view well when he sub- antee of freedom of speech. Anyone in statute to prevent flag desecration. mitted a statement to the Judiciary America is guaranteed the right to But those who argue for a statute ig- Committee last April. He explained: criticize nearly every aspect of Amer- nore the fact that 11 years ago Con- The flag is the nation’s most powerful and ican society and American govern- gress adopted a statute—the Flag Pro- emotional symbol. It is our most sacred sym- ment. Nothing in this amendment pre- tection Act—which outlawed desecra- bol. And it is our most revered symbol. But cludes such speech. tion of the flag. That Act was adopted it is a symbol. It symbolizes the freedoms Instead, this amendment speaks to in response to the Supreme Court’s de- that we have in this country, but it is not the issue of desecrating the symbol of cision striking down the Texas statute the freedoms themselves. That is why this this country. A symbol that is rec- and along with that state law, the debate is not between those who love the flag on the one hand and those we do not on the ognizable throughout the world as the state flag protection laws of 47 other other. No matter how often some try to indi- symbol of this 224 year old democracy. states. Unfortunately, one year later, cate otherwise, everyone on both sides of A democracy that has asked its men the Supreme Court struck down the this debate loves and respects the flag. The and women to fight all over the world Flag Protection Act, again by a 5–4 question is, how best to honor it and at the to preserve democracy and freedom vote. same time not take a chance of defiling what against tyranny. So the only realistic way that we can it represents. When in 1989 the Supreme Court by a outlaw flag desecration is by adopting As General Colin Powell also re- 5–4 decision struck down a Texas Flag a Constitutional Amendment. Let the cently so well put it: ‘‘I would not desecration statute, Justice Stevens people of the 50 states decide whether amend that great shield of democracy dissented and eloquently stated why our flag deserves such protection. I to hammer a few miscreants. The flag the Court had reached the wrong con- urge my colleagues to support S.J Res. will be flying proudly long after they clusion about the First Amendment in 14. have slunk away.’’ this case. Let me quote Justice Ste- Mr. LIEBERMAN. Mr. President. I Of course I do not believe that our vens: rise today to explain my vote on the Constitution or its Bill of Rights must The Court is . . . quite wrong in blandly Flag Amendment. This is one of the remain forever unaltered. But the im- asserting that respondent ‘‘was prosecuted most difficult votes I will have to cast portance of the Bill of Rights requires for his expression of dissatisfaction with the during my tenure in the United States us to establish an exceedingly high policies of this country, expression situated Senate. Words cannot fully express the threshold for agreeing to any amend- at the core our First Amendment values.’’ anger I feel towards those who dese- ment. For me, that threshold lies at Respondent was prosecuted because of the method he chose to express his dissatisfac- crate the American Flag. The Flag is a the point where an amendment is tion [burning an American Flag] with those symbol of what is great about our shown to be necessary to address some policies. Had he chosen to spray-paint—or country. It is the standard we rally extreme threat to the Republic or re- perhaps convey with a motion picture pro- around in war and in peace, in mourn- dress some outrageous wrong. In this jector—his message of dissatisfaction on the ing and in celebration and, ultimately, case, abhorrent though Flag desecra- facade of the Lincoln Memorial, there would in life and in death. It unites us in our tion may be, it simply does not meet be no question about the power of the Gov- past and in our future. When someone that threshold. ernment to prohibit his means of expression. desecrates the Flag, they in a sense I know that this is an issue that The prohibition would be supported by the legitimate interest in preserving the quality strike at all of those things. many feel passionately about. Many of of an important national asset. Though the It is because I find desecrating the my constituents have brought their asset at stake in this case is intangible, Flag to be so abhorrent and despicable views on this issue to me, and I would given its unique value, the same interest an act, that I will, as I have in the like to take just a couple of minutes to supports a prohibition on the desecration of past, support using any statutory address some of the arguments they the American flag. means possible to prohibit Flag dese- have made. Would anyone disagree with Justice cration. But after thinking long and I have heard it argued that a vote for Stevens’ suggestion that the first hard about this issue, I have decided this amendment is merely a vote to let amendment does not permit an indi- that I will again vote against this con- the People—through their state legisla- vidual to desecrate the Lincoln Memo- stitutional amendment. Although I tures—decide the issue. Those who rial by spray painting his political recognize that a statute cannot do the make this argument point to polls views on the Memorial? Surely that whole job, I cannot vote to amend the showing that as much as 75 to 80 per- would be a criminal act and no one Constitution’s Bill of Rights for the cent of the American public support S1870 CONGRESSIONAL RECORD — SENATE March 29, 2000 the amendment. It frankly is unclear year after year for so long, trying to about how to go about crafting legisla- whether support is all that high. I have secure approval for this very important tion to protect the flag, I hope they seen polls showing that a majority of amendment so that it can be sent to will all agree that it is appropriate to Americans opposed the amendment the states for ratification. Time after pass this resolution and give the Amer- when they knew that it would be the time, we have come within just a few ican people the opportunity they have first in our nation’s history to restrict votes of success. But, for whatever rea- demanded to consider this issue in the our First Amendment freedoms of son, those few votes have eluded us, legislatures and town halls and across speech and expression. But more im- and we have had to go back to square the kitchen tables of this great coun- portantly, a decision on an issue as im- one and begin the legislative process try. portant as this one should not be made again. Yesterday morning, I had the honor on the basis of polling. It is precisely So I cannot approach this debate of addressing our Nation’s veterans. As because of the caution the Framers without a good measure of frustration. I stood before them, I thought of the meant us to use in amending the Con- But on the other hand, the very fact long line of patriots throughout our stitution, that they required super- that we are here again debating this history who have defended our flag— majorities of both Houses of Congress measure is reassuring. It is proof posi- some with the supreme sacrifice. Sud- as well as of the State legislatures to tive of the American people’s con- denly, the legal hairsplitting and fear- give their assent before our nation’s tinuing belief in the importance of flag mongering over this issue seemed both foundational document could be al- protection. trivial and insulting. tered. The Senate was never meant to Imagine that. In spite of all the edi- Millions of Americans understand, as serve as a rubber stamp in this process, torials about the erosion of ideals, in these veterans do, that the flag is more and so I owe it to the People of Con- spite of all the speeches, some on this than a scrap of cloth. It weaves people necticut, who have elected me to use very Senate floor, about the loss of val- of diverse cultures together to form my best judgment, to carefully con- ues in America, in spite of the dire pre- our Nation, just as surely as its threads sider issues before me, and to vote the dictions about moral decline—in spite are woven into a pattern that stands way I believe to be correct. of all that, there is a strong and grow- for freedom throughout the world. It Some also have suggested that it is ing grassroots movement demanding deserves protection and can be pro- not this Amendment that would be protection of our Nation’s most impor- tected without endangering any of the changing the Bill of Rights or the First tant symbol: our flag. fundamental ideals it symbolizes. Amendment—that it was instead the Why would we even hesitate to an- Today, we can send a signal that we Supreme Court that did that when, in swer that call? understand, that we agree, that we 1989, it overturned 200 years of prece- Millions of our fellow citizens are honor the values that the American dent and found Flag desecration to be telling us that the sight or mention of people have attached to our flag. I hope protected by the First Amendment. our flag still has the power to awaken all our colleagues will join in voting in The history of this issue is more com- the spirit of the American patriot. favor of this resolution and moving the plicated than that. Most importantly, State legislatures are clamoring for flag protection constitutional amend- it’s just not correct to say that the Su- the opportunity to protect the symbol ment to the states for ratification. preme Court reversed 200 years of of our national aspirations and values. Mr. BINGAMAN. Mr. President, I rise precedent. The first state Flag statute To those of my colleagues who are to speak briefly on S.J. Res. 14, an apparently was not enacted until the searching for signs of spring in a win- amendment to the Constitution of the end of the 19th Century, and there was ter of moral decay, let me say: look no United States. no federal Flag statute until 1968. further. Here is the sign. This is the As my colleagues know, I will vote Moreover, it’s not really fair to say call. Now is the time to take a stand against this resolution just as I have that the Supreme Court reversed any and support this amendment. voted against previous attempts to of its precedents in 1989, because before I do not minimize the fears of those pass anti-flag desecration amendments the 1989 Texas v. Johnson case, the Su- on the other side of this debate. How- during my tenure in the Senate. How- preme Court never addressed this issue ever, it is worth remembering that the ever, I take a back seat to no one in head on. In fact, in a number of cases U.S. Supreme Court has not hesitated my respect for the flag, for what it throughout the 20th Century dealing to draw constitutional lines around the stands for and, most importantly, for with people who treated the Flag in a kinds of speech that are protected or the hundreds of thousands of brave manner that offended others, the Su- not protected by the First Amendment. men and women of our armed services preme Court repeatedly either held the who sacrificed so much to defend this conduct to be protected by the First They have found that in some cases, Nation, our Constitution, and, yes, or Amendment or found other reasons to certain interests may outweigh the overturn the convictions. For that rea- citizen’s right to free expression. As a flag. I abhor the desecration of the flag son, despite dicta in some of these result, laws may be enacted to restrict as a form of expressing views about cases distinguishing them from pure those kinds of speech, such as ‘‘fighting America or a policy of our government. Flag desecration, the dissent in John- words’’ or obscenity. That is why I supported an amendment son had to acknowledge that ‘‘Our The Court chose not to exempt the by Senator MCCONNELL that would pro- prior cases dealing with flag desecra- behavior that came under scrutiny in hibit most, if not all, incidents of flag tion statutes have left open the ques- the flag case. Frankly, I think they desecration by statutorily banning the tion that the Court resolves today.’’ 491 could have, and should have, reached a desecration of a flag if it is done with U.S. 397, 432. different result. But my point is that the intent to incite or produce immi- I must conclude that, abhorrent and the Congress need not shrink from ap- nent violence or breach of the peace, or despicable as I find desecrating the plying its own judgment to balancing if the flag belongs to the United States Flag to be, I cannot vote to support the interests involved. In my opinion, Government or the act occurs on lands this amendment. In the end, Flag dese- flag protection serves a number of com- reserved for the use of the United cration is hateful and worthy of con- pelling interests but would not prevent States. demnation, but I just cannot conclude the expression of a single idea or mes- In the end, however, it is our Con- that it threatens the Republic. For sage. I do not think the First Amend- stitution and not the flag which gives that reason, although I stand ready to ment must be or would be compromised us our freedoms. And chief among support any statutory means possible by protecting the flag from desecra- those freedoms, indeed the funda- to curtail desecration of the Flag, I tion. mental and most important freedom, is just cannot support amending our na- Even so, it is also worth noting that the right to speak freely against the tion’s foundational document to ad- what we do here today is only the first government, against a government of- dress it. step in a long process. This amendment ficial or against a government policy. Mr. CRAIG. Mr. President, I join in must be ratified by the states, and only The speech of an individual may be dis- this debate with mixed feelings. after that will Congress fashion an ac- tasteful to the majority, as is the case On one hand, I am very frustrated we tual flag protection statute. Even if when someone burns a flag or when the are here yet again, as we have been some of my colleagues are uncertain KKK is allowed to march in our cities, March 29, 2000 CONGRESSIONAL RECORD — SENATE S1871 but our Constitution was established to Instead, we should enact legislation est. Remember when Elian first ar- protect the rights of the minority. For that accomplishes the same goal— rived, the INS stated that the matter when the majority is allowed to rule without trampling on our fundamental was a custody decision for a Florida without a check and balance, tyranny American rights. I have voted several state family court. Forty-eight hours is not far behind. times for legislation that would have after Castro threatened the United I don’t doubt that the vast majority provided protection of the flag through States, the decision flipped, and con- of Americans oppose, as do I, the dese- a statute, rather than a Constitutional tinues to bend to Castro’s will. Now the cration of our flag, but we were elected amendment. administration wants to rush an ap- to preserve and protect the Constitu- Senator MCCONNELL offered an alter- peals process to send him back to a tion of the United States and I simply native that sought to create a statu- country that Human Rights Watch do not see how we defend the Constitu- tory solution that could have passed states has ‘‘highly developed machin- tion by chipping away at its very foun- the muster of the Supreme Court. The ery of repression.’’ dation. McConnell amendment would have pro- In the past week, the Department of Mr. President, there are many rea- vided for fines or imprisonment for Justice has put unrealistic demands on sons to oppose amending the first anyone who destroys a flag with the in- the family of Elian to expedite the ap- amendment for the first time in our tent to incite violence or breach of peal of the federal district court deci- Nation’s history and for this particular peace. This amendment would have sion. The Department of Justice has re- purpose. As several of our colleagues protected both our flag and our Con- peatedly threatened to revoke Elian’s have pointed out, we are not experi- stitution. I’m disappointed that it did parole and remove the child to Cuba if encing an epidemic of flag burning in not pass. the family fails to agree to their de- the country. But we likely will, if this Our flag is a symbol of the principles mand that both sides have an appellate amendment passes and Congress goes that have kept our country strong and brief prepared in one week. These un- on to ban acts of desecration. free. When we think of our flag, we precedented tactics short-circuit and I also share the concerns raised yes- think of everything that is good about dismantle the judicial process in which terday by my friend from Vermont, this country—patriotism, courage, loy- an appellate is typically allotted a Senator LEAHY, that while the Senate alty, duty and honor. Our responsi- minimum of 30–60 days to prepare a takes 3 or 4 days to debate this amend- bility is to live up to these standards— brief. This is plain and simple—Elian’s ment, we have not taken the time to and to foster a new sense of citizenship family’s civil rights are being denied. address other issues that are extremely and a new sense of duty. This past Monday, the family under important, especially to our Nation’s We should honor our flag by rekin- great pressure filed a motion with the veterans and to our Armed Forces. One dling these principles—not by amend- Eleventh Circuit to expedite the ap- example is S. 2003, of which I am a co- ing our Constitution. peals process, and still, the govern- sponsor and that begins to address the The PRESIDING OFFICER (Mr. ment’s threats have continued. In a issue of the Federal Government keep- DEWINE). Who yields time? letter sent to the family at 10 p.m. on ing its promises to our veterans in the Mr. HATCH. Mr. President, I yield 5 Monday night, the government de- area of health care. I wish the Senate minutes to the distinguished Senator manded that the family’s attorneys ap- would take up and pass S. 2003 but we from Florida. pear for a meeting on Tuesday morning can’t seem to find time to do that. Mr. MACK. Mr. President, I intend to at 9 a.m. with INS officials to discuss Likewise, I recently introduced legisla- speak on another issue. I ask unani- the revocation of Elian’s parole. The tion that would compensate the re- mous consent to speak as in morning government has continually dictated maining survivors of the Bataan Death business for not to exceed 5 minutes. the terms of all meetings and has bull- March for the incredible suffering they The PRESIDING OFFICER. Is there endured on behalf of their country. I dozed over the right of Elian and his objection? would like to see the Senate take up Miami family. Without objection, it is so ordered. Today, the Department of Justice and pass that legislation but we has summoned Elian’s great-uncle, haven’t. f Lazaro Gonzalez, to a meeting where Mr. President, I think our Constitu- IN SUPPORT OF A PRIVATE RE- tion and Nation are strong enough to he is expected by the INS to sign a uni- LIEF BILL FOR ELIAN GON- lateral demand ‘‘to comply with the in- handle a few miscreants who want to ZALEZ-BROTONS burn a flag. I think the drafters of the structions of the INS,’’ yet the INS has Mr. MACK. Mr. President, I come to Constitution envisioned that it would failed to provide the attorneys and the the floor of the Senate to speak about survive speech which the majority family with what those instructions an incident that occurred just before finds offensive. I believe that a vote will be. After all this child has been Thanksgiving Day 1999, when a mother against this amendment is a vote for through, is it too much to ask how the who so loved her son that she tried to the Constitution and for the most im- government plans on removing him portant principle embedded in that bring him to the shores of the United from the only home he now knows? document, the right of every American States of America from Cuba. Had she Should his family agree to having INS to free speech. succeeded, she would have joined her agents come to his Miami home and Ms. MIKULSKI. Mr. President. I op- family members already in the United take him? Probably not. But one thing pose the burning of our Nation’s flag. I States. Instead, she met with tragedy is for sure: they should know the de- oppose it today as I always have. I am in the Florida straits. The mother died. tails of what they are agreeing to. deeply concerned about the desecration The five-year-old boy survived. Now, Keep in mind that this same agree- of the United States flag because of we are being forced to consider young ment, if signed, destroys any shred of what it says about our culture, our val- Elian’s future. dignity left in our judicial process. It ues and our patriotism. Today, the freedom sought by a demands that the family’s attorneys Our flag is the lasting symbol of mother for her son is being mocked. have a brief prepared to submit to the America. To me, every thread in every Elian Gonzalez finds himself in the Supreme Court within 5 days of the ap- American flag represents individuals middle of a struggle between his Miami pellate court decision, a time line vir- who have laid down their lives in the family and the Department of Justice, tually impossible to meet. name of freedom and democracy. an agency unwilling to consider what In its effort to dictate terms for the Yet I cannot support an Amendment is in the best interest of the child, an family’s appeal, the government has to the United States Constitution agency continually impairing a fair betrayed the very integrity for which which would, for the first time in our presentation of the merits of this case. the Attorney General is charged with nation’s history, narrow the reach of I ask my colleagues to open their defending—equal protection under the the First Amendment guarantee of minds and their hearts and listen to law and the right to pursue justice in a freedom of speech. Instead of expand- why the current process being used by free America. In the past week, I’ve ing the rights of Americans, this the DOJ and the INS represents a grave heard justice department officials say Amendment would constrict the free- injustice and denies a decision that they are taking more aggressive action doms which we fought so hard to win. should be based upon Elian’s best inter- against the family because they want