Statement On S.J.Res. 14 (Flag) Markup Subcommittee On The Constitution

April 21, 1999

Each time I raise or lower the flag at my home in Vermont, I am reminded of the freedoms we enjoy, and of the sacrifices that have been made over the last 223 years to establish and maintain those freedoms. All of us agree that we should honor the service of our veterans and those in our military. The question we now face is whether we will honor them by upholding the freedom for which they fought or whether we will diminish that freedom in a symbolic gesture.

We need to remember that our soldiers did not fight for a flag, they fought for freedom. Yesterday we heard the eloquent words of Professor Gary May, a former Marine and decorated war veteran, who lost both legs as a result of a land mine explosion while serving in Vietnam. Professor May testified:

"I love this country, its people and what it stands for. The last thing I want to give to future generations are fewer rights than I was privileged to have. My family and I served and fought for others to have such freedoms and I am opposed to any actions which would restrict my children and their children from having the same freedoms I enjoy."

Marvin Stenhammar, another decorated and disabled combat veteran a former paratrooper and Green Beret testified before this committee last July:

"[T]hough many of my colleagues and friends were wounded in action, they really were not wounded for the flag but rather for what that flag stands for liberty. Flags, no matter how honored, do not have rights. People do."

Substance, not symbols. The principles of freedom and the sacrifices of our veterans are important. They have about them a greatness that we cannot improve upon and that is beyond the power of any protester to diminish.

I am proud that in 1995, the Vermont Legislature chose the First Amendment over the temptation to make a politically popular endorsement of a constitutional amendment regarding the flag. The Vermont House passed a resolution urging respect for the flag and also recognizing the value of protecting free speech "both benign and overtly offensive." Our Vermont Attorney General has urged that we trust the Constitution and not the passions of the times.

Vermont's actions are consistent with our strong tradition of independence and commitment to the Bill of Rights. Indeed, Vermont's own Constitution is based on our commitment to freedom and our belief that it is best protected by open debate. Vermont did not join the Union until the Bill of Rights was ratified and part of the country's fundamental charter.

Vermont sent Matthew Lyon to Congress and he cast the decisive vote of Vermont for the election of Thomas Jefferson. He was the same House member who was the target of a shameful prosecution under the Sedition Act in 1789 for comments made in a private letter. Vermont served the nation again in the dark days of McCarthyism when Senator Ralph Flanders stood up for democracy and in opposition to the repressive tactics of Joseph McCarthy. Vermont's is a great tradition that we cherish and that I intend to uphold.

At the conclusion of yesterday's hearing regarding this proposed constitutional amendment, some expressed their view that this is a Nation in moral decline and that amending the Constitution to punish "desecration" of the flag is thereby justified.

I disagree. I believe that this Nation is strong, and that there is far more civic virtue in the American people than some credit. At least that is the case in Vermont.

I am not a fan of some of what appears on television and in the movies, but I think that a constitutional amendment to punish flag tampering, which all concede is exceedingly rare, is no way to affect television programming. Nor should the Government be engaged in entertainment censorship.

The issue of civic virtue does merit discussion. We in the Senate do play a role, and an important one, in setting the level of civic virtue in this Nation. Many religious leaders, however, take the view that it is a sign of moral confusion that the proposed amendment speaks of "desecrating" a secular object, the flag. They find the language of this proposed amendment offensive.

Reverend Wilson testified yesterday that "Desecration of an object is possible only if the object is recognized as sacred." He said that, when the Government forces people to treat something not associated with the divine as holy, it has mandated religious idolatry.

Do we promote civic virtue when arrogate to Congress the right to declare "sacred" and capable of "desecration" something that is not associated with the divine? Or do we simply mandate idolatry for people of faith, as Reverend Wilson warned?

This concern is not limited to religious leaders. Conservative legal scholar Bruce Fein emphasized this concern when he testified before a House Subcommittee in 1995. He said:

"Inserting the term `desecration' into the Constitution would in and of itself seem highly inappropriate. Webster's New World Dictionary defines `desecrate' as `to violate the sacredness of,' and in turn defines `sacred' as `consecrated to a god or God; holy; or having to do with religion.' The introduction of these terms could create a significant tension within our constitutional structure, in particular with the religious clause of the first amendment."

This widespread uneasiness over the language of this amendment underlies a deeper problem. You cannot legislate virtue. Keith Kreul, a former National Commander of The American Legion, makes this point in his written statement to the Committee:

"A patriot cannot be created by legislation. Patriotism must be nurtured in the family and educational process. It must come from the heartfelt emotions of true beliefs, credos and tenets."

We will never promote civic virtue by punishing people for peaceful protest. That can only undermine the foundations of our civic life.

If we are sincere about wanting to do something to promote civic virtue in the United States, we can best do it by setting an example in our own service as Senators, rather than by attempting to punish a handful of yahoos, most of whom already can be and are punished under existing State laws against theft, destruction of property, and other forms of ordinary hooliganism. We can promote civic virtue not by empty words but by action, by what we do, not by what we say.

We can teach the lessons of civic virtue by setting an example in the way we conduct the work of the Senate. We can show it is important to keep our promises to veterans by providing them with decent health care. We can show leadership by promoting an effective treaty to remove land mines from the face of the earth. We can help put more teachers in the classroom, to help the youth of our country to appreciate and reach for something higher, something nobler. We can help provide better security at our schools in a time when it is needed.

We can and should promote civic virtue, but we should do so by setting an example in our own exercise of our rights and responsibilities, and not by an effort to limit the rights of others.