Senate Debate
on Flag Burning:
Senator Feingold (D-WI)
12-8-95

This document was taken from the Congressional Record via Thomas.

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Mr. FEINGOLD. I thank the Chair.

I certainly want to join with the chairman's comment that this is a worthy debate and one that people should join in if they have either strong feelings in favor of or against the constitutional amendment regarding flag desecration.

Mr. President, in response to the chairman's challenge, I would like to rise today in opposition, strong opposition, to the proposed constitutional amendment relating to the flag.

I do so with the utmost respect for my colleagues and especially the distinguished chairman of the Judiciary Committee and the many Americans who support this effort and, of course, in the spirit of my own utmost respect for the flag of this country.

Mr. President, I and all Members of this body share the enormous sense of pride that all Americans have when they see the flag in a parade or at a ball game or simply hanging from store fronts and porches all across their home State. It is one of my favorite sights regardless of the occasion. It makes me feel great to be an American when I see all those flags.

I appreciate that this is a deeply emotional issue, and rightly so. Like most Americans, I find the act of burning the American flag to be abhorrent and join with the millions of Americans who condemn each and every act of flag desecration. I understand those who revere our flag and seek to hold it out as a special symbol of this Nation. It is a very special symbol of our Nation.

However, I think the key to this whole issue is that we are not a nation of symbols--we are a nation of principles. Principles of freedom, of opportunity, and liberty. These are the principles that frame our history and these are the principles, not the symbols but the principles, that define our great Nation. These are the principles found in the U.S. Constitution and the Bill of Rights.

No matter how dearly we all hold the flag, it is these principles we must preserve above all else, and it is adherence to these principles which forms the basis of my opposition to the proposed constitutional amendment.

As a threshold, Mr. President, let me say that I view any effort, any effort at all, to amend the U.S. Constitution as something that we should regard with trepidation. The chairman in his comments this morning said to those of us who suggest that maybe if we do the flag amendment, it might lead to other similar amendments, a slippery slope if you will. The chairman kept saying, `Give me a break. Give me a break'--that this was unlikely; that the emotions that fuel this issue would not fuel other attempts to amend the Constitution.

That those emotions would be just as worthy and just as heartfelt and patriotic and just as full of values as the emotions that drive this effort, I think is clear on its face and that this is a first step that could lead to many other steps that could leave the first amendment in tatters.

Since the adoption of the Bill of Rights in 1791, the Constitution has been amended on only 17 occasions. Yet, Mr. President, this is the third amendment that has been considered by our Judiciary Committee in the first term of the 104th Congress alone, with hearings being held on what could very well be a fourth constitutional amendment. According to the Congressional Research Service, over 115 amendments--115 amendments--have been introduced thus far just in the 104th Congress--amendments to the U.S. Constitution.

While I do not question the sincerity of these efforts, there is much to be said for exercising restraint in amending this great document. The Constitution has served this Nation well and withstood the test of time, and the reason it has withstood the test of time is that we have typically, almost always resisted the urge to respond to every adversity, be it real or imagined, with that natural instinct to say, `Let us pass a constitutional amendment.' It is a gut feeling we have when we see a wrong. Let us just nail it down. Let us not pass a law--put it in the Constitution and forever deal with the issue.

However, history, as well as common sense, counsel that we only amend the Constitution under very limited circumstances. I strongly believe that those circumstances do not exist in the case of the so-called flag burning amendment. Proponents of this amendment argue that we must amend the Constitution in order to preserve the symbolic value of the U.S. flag. However, they do so in the absence of any evidence that flag burning is rampant today or that it is likely to be in the future. But perhaps more importantly, this amendment is offered in the absence of any evidence, any evidence at all, that the symbolic value of the flag has in any way been compromised in this great Nation. It has not. No evidence has been offered to show that the small handful of misguided individuals who may burn a flag each year have any effect whatsoever on this Nation's love of the flag or our Democratic way of life.

The inescapable fact of the matter is that the respect of this Nation for its flag is unparalleled. The citizens of this Nation love and respect the flag for varied and deeply personal reasons, some of which were eloquently expressed today by the distinguished chairman of the Judiciary Committee. That is why they love the flag, not because the Constitution imposes the responsibility of love of the flag on them.

As a recent editorial in the La Crosse, WI, newspaper pointed out, `Allegiance that is voluntary is something beyond price. But allegiance extracted by statute--or, worse yet, by constitutional fiat--wouldn't be worth the paper the amendment was drafted on. It is the very fact that the flag is voluntarily honored that makes it a great and powerful symbol.'

I think that is a great statement one of our Wisconsin newspapers made.

Mr. President, the suggestion that we can mandate, through an amendment to the Constitution, respect for the flag or any other symbol ignores the premise underlying patriotism; more importantly, it belies the traditional notions of freedom found in our own Constitution.

Mr. President, some would argue this debate is simply about protecting the flag, that it is just a referendum over who loves the flag more. This faulty premise overlooks the underlying issue which I think is at the heart of the debate, that being to what degree are we as a free society willing to retreat from fundamental principles of freedom when faced with the actions of just a handful of misguided individuals?

In my estimation, Mr. President, the answer is clear. The cost exacted by this amendment in terms of personal freedom--in terms of personal freedom--is just far too great a price to pay to protect a flag which already enjoys the collective respect and admiration and love of an entire nation. If adopted, this amendment will have an unprecedented direct and adverse effect on the freedoms embodied in the Bill of Rights. These are freedoms which benefit each and every citizen of this Nation.

Yes, Mr. President, it is true, despite what the chairman said today, it is true that for the first time in our history, for the first time in this great Nation's history, the Constitution and the Bill of Rights, both premised on limiting the Government--they are premised on limiting the Government--will be used to limit individual rights, and, in particular, for the first time the constitutional process will be used to limit, not guarantee, but limit individual freedom of expression.

I do not know how you could overstate the significance of such a new course in our constitutional history. As Dean Nichols of the Colorado College of Law noted before the Constitution Subcommittee of the Judiciary Committee, said, `I think there would be a real reluctance to be the first American Congress to successfully amend the first amendment.'

Do not let anyone kid you. That is what this would do. It would amend the first amendment. It will have a different number, it will be listed in the high twenties, but it will change and alter the first amendment.

The chairman tries to address that by saying, well, shortly after the Bill of Rights was passed, the 11th amendment was passed in 1798. That is accurate. But it did not change the right to free speech. It did not limit the scope of the Bill of Rights.

In fact, the 11th amendment was consistent with the spirit of the Bill of Rights by guaranteeing that the States cannot be compromised by the Federal Government. The 11th amendment was not about limiting free expression or any other freedom of the Bill of Rights. It states: 

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The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

It is not about free speech. The point is really that this would be the first time--the first time--in this Nation's history that we would change something I consider to be very sacred, the Bill of Rights. That we would choose now, after 200 years of the most unparalleled liberty in human history, to limit the Bill of Rights in the name of patriotism is inherently flawed. And I think it is really, ironically very tragic.

Some will argue that we should not attach too much significance to this unprecedented step, while still others argue that the amendment has no effect whatsoever on the first amendment. This is despite the fact that this amendment, if adopted--make no mistake about it--if it is adopted, it would criminalize--make it a crime--the very same expression that the Supreme Court has previously held to be explicitly protected under the first amendment.

So it is clearly an erosion of the Bill of Rights. You may argue that it is a justified erosion or a necessary erosion, but it clearly limits what the U.S. Supreme Court has said is part and parcel of our freedom as an American to express ourselves.

Mr. President, I think it is essential to carefully consider the basis for the adoption of the Bill of Rights before we go ahead and alter it for the first time in our Nation's history. Many who originally opposed the Constitution, those not entirely comfortable with the ratification, sought the Bill of Rights in particular because, in their view, the Constitution in its original form without the Bill of Rights, failed to properly consider and protect the basic and fundamental rights of the individuals of this country. That is why we have a Bill of Rights.

Although many Federalists, including Madison, felt that the limited powers conferred to the Government by the Constitution, the limitations in the Constitution itself, were sufficiently narrow so as to leave those rights safe and unquestioned, people still felt we had to go ahead and have a Bill of Rights adopted in order to provide the reluctant States with the assurance and the comfort necessary so they would approve the Constitution, so they would enter into this great Federal Union. And everyone today in the 104th Congress should understand this.

What is so much of the rhetoric of the 104th Congress about? The concern that the Federal Government is too strong, that it does too much, that we ought to leave enough power to the States and to individuals. That is what all the rhetoric is about today. Well, that is what the Bill of Rights was about also. And that is why we have never changed it. Because the notion of the Contract With America is not a new one. It is a heartfelt feeling of all Americans that the Federal Government must be tightly limited in its powers so that our liberties as individuals and as States cannot be compromised.

From this beginning in compromise, almost exactly 204 years ago, the Bill of Rights has evolved into the single greatest protector of individual freedom in human history. It has done so in large measure, I believe, because attempts to alter its character have to date been rejected. If this great document was changed every few years, as I am sure every Congress has been tempted to do, it would not be the great Bill of Rights that not only Americans revere but people around the world revere as well.

That individuals should be free to express themselves, secure in the knowledge that Government will not suppress their expression based solely upon its content, is a premise on which the Nation was founded. The Framers came to this land to escape oppression at the hands of the state. Obviously, there is no dispute about that, that Government should not limit one's ability to speak out. That is established in our Constitution by the simple words in the first amendment, `Congress shall make no law * * *'--no law--`* * * abridging the freedom of speech * * *.'

Of course, over time this Nation has had to grapple with the exact parameters of free speech, regulating in regard to defamation or obscenity for example. However, the fact that some expression may be proscribed, can be stopped, does not obviate the presumptive invalidity of any content-based regulation.

In the words of Justice Scalia of the U.S. Supreme Court:

. . .the Government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the Government.

In other words, you cannot chose which messages you like and which messages you do not like. You cannot say libel against this Government is different than other kinds of content that might also be libel. Although we need not concern ourselves with the exact parameters of speech subject to limitation here because the expression in question, political expression, is clearly protected under the first amendment. This points out the fact that the one defining standard that has marked the history of free expression in this Nation is that speech cannot be regulated on the basis of its content.

The presumptive invalidity of content regulation protects all forms of speech, that which we all agree with, as well, of course, as the speech we may disagree with or find objectionable. To do otherwise would make the promise of free speech a hollow promise. What does it mean if we only protect that which we like to hear or is pleasant to our ears?

As the Supreme Court stated in Street versus New York:

. . . freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

Yet, Mr. President, this amendment departs from that noble and time-honored standard. It seeks instead to prohibit a certain kind of expression solely, solely because of its content.

The committee report accompanying this amendment makes it explicit that this effort is directed at that expression which is deemed disrespectful--disrespectful. This amendment attempts to deal only with disrespectful expression. Even more troubling is that this amendment leaves the determination of what is disrespectful to the Government, the very Government that we were trying to limit after we won the Revolutionary War and got together and passed a constitution. It is that Government that we are going to allow to define what is objectionable by this amendment.

What could be more contrary to the very foundations of this country? For the purpose of free expression to be fulfilled, the first amendment must protect those who rise to challenge the existing wisdom, to raise those points which may anger or even offend or be disrespectful.

As the great jurist, William O. Douglas, observed, free speech: 

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. . . may indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.

Mr. President, adherence to this ideal is exactly what separates America from oppressive regimes across the world. We tolerate dissent, we protect dissenters, while those other countries suppress dissent and jail dissenters or, for example--and I can give you many examples, as I know the Chair can--as recent events illustrate in Nigeria, the condemnation of dissenters to a fate far more grave than incarceration: summary execution.

The first amendment to the U.S. Constitution is not infallible. It cannot sanitize free expression any more than it can impart wisdom on thoughts which otherwise have none. Nor can the first amendment ensure that free expression will always comport with the views of a majority of the American public or the American Government.

But what the first amendment does promise is the right of each individual in this Nation to stand and make their case, regardless of their particular point of view, and to do so in the absence of a Government censor. In my estimation, this right is worthy of preserving, and I think that right is at risk today on the floor of the U.S. Senate.

When we start down the road to distinguishing between whose message is appropriate and whose is not, we risk something far greater than the right to burn a flag as political expression.

Much of what is clearly protected expression can easily be deemed objectionable. For example, as I said many times before and a lot of people have said before me, I deplore those who proudly display the swastika as they parade through our neighborhoods. I deplore these who hide behind white sheets and espouse their litany of hate and ignorance under a burning--a burning--cross. I deplore those comments which suggest that the most effective way to deal with law enforcement is to shoot them in the head. We hear that these days. Just as I object to speech which seeks to equate particularly vile criminal acts with a particular political ideology.

Each of these forms of expression, Mr. President, is reprehensible to me and to traditional American values of decency and tolerance. But they are all protected forms of expression nonetheless, and they would continue to be protected after this amendment was passed and ratified. So do I believe that we ought to outlaw them through an amendment to the Constitution of the United States? Of course not.

So too it is with flag burning. As the Supreme Court has repeatedly stated, the act of flag burning cannot be divorced from the context in which it is occurring, and that is political expression. It was pretty clear from our Judiciary Committee hearings if somebody is out in the backyard grilling on July 4th and accidentally burns their flag, that would not be the necessary intent. There has to be some mental element--it cannot just be an accident. So this amendment is about what somebody is thinking. It is about what somebody is thinking when they burn the flag. It is about the content of their mind.

This Nation has a proud and storied history of political expression, much of which, obviously, can be characterized and is characterized sometimes as objectionable. Does any Member of this body believe that if the question had been put to the Crown as to whether or not the speech and expression emanating from the Colonies in the form of the Boston Tea Party or the Articles of Confederation, should be sustained, the answer, I think, we all know would have been a resounding no. Could not the same be said of messages of the civil rights and suffrage movements? This Nation was born of dissent and, contrary to the view that it weakens our democracy, this Nation stands today as the leader of the free world because we tolerate those varying forms of dissent, not because we persecute them.

In seeking to protect the U.S. flag, this amendment asks us to depart from the fundamental ideal that Government shall not suppress expression solely because it is disagreeable.

As Justice Brennan wrote for the majority in Texas versus Johnson:

If there is a bedrock principle underlying the first amendment, it is that the Government may not prohibit expression of an idea simply because society finds the idea itself offensive or disagreeable. We have not recognized an exception to this principle even where our flag has been involved.

In charting a divergent course, this amendment would create that exception, an exception at odds with free expression and with our history of liberty. If adopted, this amendment would, for the first time in our history, signal an unprecedented, misguided and troubling departure from our history as a free society.

Mr. President, there are also definitional and practical flaws with this amendment. Beyond the proposed amendment's departure from traditional notions of free expression, there are practical aspects that raise concerns, not just for those who may offer objectionable points of view, not just for the purported or possible flag burners, but for all Americans. This amendment will subject the constitutional rights of all Americans to potentially an infinite number of differing interpretations, the parameters of which the proponents themselves cannot even define.

Without any guidance as to the definition of the key terms, the proposed amendment provides the Congress and the States the power to prohibit the physical desecration of the U.S. flag.

Testimony was received by the Constitution Subcommittee that the term `flag of the United States,' as used in this amendment, is, as they said, `problematic' and so `riddled with ambiguity' as to `war with the due process norm that the law should warn before it strikes.' Even supporters of this amendment, including former Attorney General of the United States William Barr, have acknowledged that the term `flag' could mean many different things. The simple fact of the matter is that no one can lend any guidance as to what the term `flag' will mean, other than to suggest that it will be up to various jurisdictions.

Senator Hatch, the chairman, has indicated today that the States will be removed from the amendment. If that is not the case, leaving them in would raise a second practical problem with this effort to amend the Bill of Rights, that being that the fundamental constitutional rights would be explicitly subject to the geographic boundaries of political subdivision.

The report accompanying this measure acknowledges that the extent to which this amendment will limit your freedom of expression could well depend on where you live. Therefore, if you live in Madison, WI, your rights could be vastly different than the rights of your cousin who lives in Seattle, WA, for example.

Furthermore, the rights of the States to limit the first amendment would not prohibit subsequent legislative bodies from expanding or further limiting rights under the first amendment. In other words, fundamental rights to free speech could vary from one election to the next.

So I will await with interest the amendment regarding the States, but as the amendment is written now there will be at least--at least--for the first time in our country's history, 51 interpretations of the first amendment.

I think this is counter to the very premise of the Bill of Rights, that being that the rights of individuals should remain beyond the purview of unwarranted governmental intrusion or intervention. That is what led to the adoption of the Bill of Rights in the first place.

In the words of Justice Jackson, speaking for the Supreme Court in 1943:

The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Yet, this amendment does exactly that and subjects those fundamental rights to the outcome of elections. What comfort is a first amendment which tells the American public that the appropriateness of their political expression will be left up to the Government?

At the core of this proposed amendment is the desire to punish that expression which is disrespectful.

The ability to accomplish this troubling goal turns upon the interpretation that would be given to the term `desecration.' Mr. President, despite attempts to argue that it means to `treat with contempt' or `disrespect' or to violate the `sanctity' of the flag, it is just obvious that this is subject to interpretation. The word `desecration' could not be more subject to interpretation. It is almost an inherently vague term.

If, as the report accompanying this measure suggests, every form of desecration is not the target of this amendment, then it logically follows that the Government--the Federal Government --will make distinctions between types of political expression, and the distinction will be this: that which is acceptable and that which is not. The flaws in this process should be obvious to every American.

So long as your political expression comports with that of the governing jurisdiction, you are going to have your freedom of expression, and it will be preserved. We can certainly debate this point, but in punishing only that expression which is `disrespectful,' someone--in this case the Government--has to decide what is disrespectful and what is not.

For those of us who think that this is an easy distinction and there is not going to be a problem deciding what is desecration and what is disrespectful, I have an example. A Vietnam war veteran, a friend of mine from Wisconsin, Marvin J. Freedman, recently wrote in an article, aptly entitled, `The Fabric of America Cannot Be Burned,' that the fatal flaw in this amendment will be its application. In Mr. Freedman's words: 

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The real potential for crisis is one of context. Consider the star spangled bandanna. Let's say a highly decorated veteran is placing little American flags on the graves at a veterans cemetery for Memorial Day, works up a sweat and wipes his brow with one of those red, white, and blue bandannas. If the flag amendment were on the books, would the veteran's bandanna be deemed a `flag of the United States'? Probably not. But if it were, would his actions be interpreted as `desecration'? I cannot imagine anyone thinking so.

Mr. Freedman continues:

However, if a bedraggled-looking antiwar protester wiped his brow with the same bandanna after working up a sweat and denouncing a popular President and the United States Government's military policy, a different outcome could be a distinct possibility. Whether the bandanna would be deemed a `flag' and the sweat-wiping considered desecration would very likely be directly related to the relative popularity of the President and the war being protested. That is where the flag amendment and the first amendment would bump into each other.

Mr. President, we are all free to draw our own conclusions as to the validity of Mr. Freedman's hypothetical. I think it does a good job in pointing out, in very simple terms, that which the Supreme Court has often stated: You cannot divorce flag desecration from the political context in which it occurs. Ultimately, value judgments have to be made, and I think these are judgments that this amendment, unfortunately, reserves to the Government. For the first time in our history, it gives that judgment to the Government, not to individuals, not to the citizens of this country.

Mr. President, the rights at the heart of this debate are far too fundamental and far too important to be subjected to the uncertainty created by this amendment. We must not abandon 2 centuries of free expression in favor of an unwarranted and ill-defined standard which allows Government to choose whose political message is worthy of protection and whose is not. This is counter to the very freedoms the flag symbolizes.

The very idea that a handful of misguided people could cause this Nation--a Nation which has, from its inception, been a beacon of individual liberty, and a Nation which has defended, both at home and abroad, the right of individuals to be free--to retreat from the fundamental American principle that speech should not be regulated based upon its content is really cause for great concern.

I cannot believe we are going to let a few people who are not even around, as far as we know, not even doing this flag desecration, cow us into passing this amendment. That would give the victory to the flag burners. It would be score one for the flag burners if we are foolish enough to amend the Constitution and Bill of Rights, for the first time in our history, just to deal with such misguided people.

FLAG DESECRATION CONSTITUTIONAL AMENDMENT (Senate - December 08, 1995)

Again, Mr. President, there is no doubt that the American people care deeply about the flag. But I really believe they care just as deeply about the Constitution. I was recently contacted by a man from Sturgeon Bay, WI, a veteran of the Navy. What did he have to say? He wrote:

The most important part of the Constitution is the Bill of Rights, the first ten amendments. The most important one of those is the first amendment. Burning a flag, in my opinion, is expressing an opinion in a very strong way. While I may disagree with that opinion, I must support the right to express that opinion. To me, the first amendment is the most important thing. The flag is a symbol of that and all other rights, but only that, a symbol.

My constituent, I think, said it quite well. I appreciated very much the time and effort taken to write to me, not because we share the same perspective, but because the letter makes the very important point that, in the final analysis, and as the proponents of the amendment readily concede, the flag is but a symbol of this Nation. As I said at the outset, Mr. President, we are not a nation built on symbols; we are a nation built on principles.

We will be paying false tribute to the flag, in my opinion, if in our zeal to protect it we diminish the very freedoms it represents. The true promise of this great and ever-evolving Nation is rooted in its Constitution. Ultimately, the fulfillment of this promise lies in the preservation of this great document, not just of that which symbolizes it. If we sacrifice our principles, ultimately, our symbols will represent something less than they should.

Therefore, Mr. President, I must respectfully oppose this effort to amend the Bill of Rights. While I do not oppose this effort with anything less than the utmost respect for the American flag, my belief that we must be vigilant in our preservation of the Bill of Rights and the individual freedoms found therein really dictates my opposition.

Mr. President, to conclude, the measure before us limits the Bill of Rights. It actually limits the Bill of Rights in an unprecedented, unwarranted, and ill-defined manner. As such, I intend to oppose this resolution.

Mr. President, I ask unanimous consent that a series of editorials from throughout the State of Wisconsin, all opposed to flag burning and also to this amendment, be printed in the Record.

There being no objection, the articles were ordered to be printed in the Record, as follows: