Mr. SESSIONS. Mr. President, the amendment we are debating is short and to the point. It contains only 17 words:
Congress shall have the power to prohibit the physical desecration of the flag of the United States.
We are discussing this today because in 1989, in Texas v. Johnson, five members of the Supreme Court held that flag desecration--specifically burning the American flag--was a form of first amendment-protected speech and Texas's law banning desecration of the flag was unconstitutional. Adding insult to injury, when Congress passed the Flag Protection Act of 1989, codified as title 18, section 700 of the United States Code, five members of the Supreme Court struck down that law as unconstitutional, too, in United States v. Eichman, 1990.
I believe the amendment we are considering today is entirely appropriate, and I am proud to cosponsor it. I wish to respond briefly to some of the criticism I have heard. Some would say: Well, you want to limit free speech when you want to stop burning the flag.
Now, it is true that the Supreme Court, by a 5-to-4 majority, held that the act of burning a flag is free speech. Well, I don't agree. The Supreme Court for a long time has allowed reasonable ``time, place, and manner'' restrictions on speech.
Moreover, the Supreme Court has long recognized that:
[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or `fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
The late Chief Justice Rehnquist wrote in his dissent in Texas v. Johnson: ``Far from being a case of `one picture being worth a thousand words,' flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others.'' It is not really ``speech'' at all, but if you consider it some sort of expression, it is certainly inarticulate. It is not of great value compared to the unifying symbol of the flag.
The first amendment is about intelligent debate, argument, concern over policy issues--not whether you get to ``grunt'' or ``roar'' by burning a flag. I don't believe flag-burning was ever intended to be covered by the Constitution. So I believe the Supreme Court got it wrong in Texas v. Johnson and United States v. Eichman.
More importantly, the American people agree that the Supreme Court got it wrong. All 50 States have asked Congress to propose an amendment prohibiting flag desecration. In our democracy, the people have the last say on the Constitution. If the people think the Supreme Court is wrong, they have every right to amend the Constitution and tell it so.
In my view, the flag of the United States is a unique object, and prohibiting its desecration will not in any fundamental way alter the free expression of ideas in this country.
It seems to me if burning the flag is speech and if the Court is correct in saying it is speech and the people of the United States care deeply about protecting the flag, then they should adopt a restricted, narrow constitutional amendment that would allow Congress to stop flag desecration.
Indeed, it would be healthy for this country to adopt a constitutional amendment that would allow the protection of the flag. More Medals of Honor have been awarded for preserving and fighting to preserve the flag than any other. We know the stories of battle when time after time the soldier carrying the flag is the target of the enemy. When he fell, another one would pick it up. When he fell, another one would pick it up. When he fell, another one would pick it up. That is the history.
We pledge allegiance to the flag, not the Constitution, not the Declaration of Independence. We pledge allegiance to the flag because it is a unifying symbol for America, and having a special protection for it is quite logical to me.
I do not believe we should never amend the Constitution. I do not think we amend the Constitution enough. But we want to have good amendments that are necessary, that are important, that enrich us, and that make us a stronger nation. In 1816, Thomas Jefferson wrote: ``Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched.'' Jefferson disagreed and proposed amending a constitution every 20 years or so so that it could ``be handed
[Page: S6530] GPO's PDF on, with periodical repairs, from generation to generation, to the end of time, if anything human can last so long.''
I don't know whether we need to amend the Constitution every 20 years, as Thomas Jefferson proposed, but I do think a constitutional amendment is a healthy way for us to remind ourselves that this Nation is a democratic republic. We are not a nation under the rule of the Supreme Court. The Constitution belongs to ``We the People of the United States,'' as its preamble states--not the judiciary of the United States. The Constitution was democratically adopted. It was meant to be democratically amended. It must remain democratically accountable--or lose its legitimacy as the foundation for a democratic republic.
Let me finally address one more concern about the language of this amendment. It is short. It is concise. And it leaves it to Congress to address the details on what specific forms of conduct to prohibit. I trust Congress to do that. Congress did it in 1989 with the Flag Protection Act codified at title 18, section 700 of the United States Code.
Concern has been expressed that the term ``desecration'' is too broad, too vague. I don't think so. I think it will clearly grant Congress the power it needs without any restriction on our great freedoms, particularly real speech.
Mr. President, the flag of the United States is a unique, unifying symbol of our country and all it embodies. Brave men and women have fought and died for that flag and what it represents. Let us today act to protect the flag and adopt S.J. Res. 12.
