Senate Floor Statement of Sen. Patrick Leahy, Ranking Member, Senate Judiciary Committee, On Flag Desecration Constitutional Amendment

March 29, 2000

Mr. LEAHY. Mr. President, in 1791, the State of Vermont, the State that I am honored to represent, was admitted to the Union. Kentucky followed. Congress then saw fit to change the design of the American flag for a time to include 15 stars and 15 stripes, one for each State. It was this flag, the one recognizing the addition of Vermont to the Union, that flew over Fort McHenry in 1814, and inspired Francis Scott Key to write the Star Spangled Banner.

Along with Vermonters and many others I find that flag inspirational, as I do the American flag with 48 stars under which my family fought in World War II. I remember the great pride my wife and I felt seeing the current American flag with 50 stars being carried in formation at Paris Island when my youngest son became the newest member of the U.S. Marine Corps.

Fifty years after that famous battle that inspired our national anthem in Baltimore's harbor, President Abraham Lincoln visited that city as this country confronted its greatest test. It was a time in which this nation faced grave peril from a civil war whose outcome could not yet be determined. Many flags flew over various parts of the United States and our existence as a nation was in doubt. President Lincoln used the occasion to reflect on a basic feature of American democracy.

As Professor James McPherson recently reminded us, Lincoln observed: `The world has never had a good definition of the word liberty. And the American people just now are much in need of one. We all declare for liberty, but using the same word we do not mean the same thing.'

Through the course of this debate, it has seemed to me that all of us here in this chamber would champion liberty. If any of us were asked, we would say: Of course we do. When I listen to the debate, I have to conclude that Lincoln's wish for a definition on which all of us would agree remains very elusive.

Ultimately, the debate over this amendment turns on the scope we think proper to give to speech which deeply offends us. For Congress to limit expression because of its offensive content is to strike at the heart of the First Amendment. Justice Holmes wrote that the most imperative principle of our Constitution was that it protects not just freedom for the thought and expression we agree with, but `freedom for the thought that we hate.' He also wrote, that `we should be eternally vigilant against attempts to check the expression of opinions that we loathe.'

Justice Robert Jackson made this point with unsurpassed eloquence in a 1943 decision, West Virginia State Board of Education v. Barnette. Unlike that small handful of wartime decisions upholding flag burning statutes on which the proponents try to base their claim of an expansive judicial tradition before the Johnson case, the Supreme Court, even in 1943, during the difficult days of World War II, recognized the fundamental tradition of tolerance that makes this country strong. The Supreme Court in a very difficult decision, at the height of world War II held that State school boards may not compel their teachers and students to salute the flag. Justice Jackson wrote:

To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.

We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But 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.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

What unifies our country is the voluntary sharing of ideals and commitments. We can do our share toward that end by responding to crude insults with a responsible action that will justify respect and allegiance that has been freely given. Justice Brennan wrote in Johnson:

We can imagine no more appropriate response to burning a flag than waving one's own.

That is exactly how the American people respond.

Respect cannot be coerced. It can only be given voluntarily. Some may find it more comfortable to silence dissenting voices, but coerced silence can only create resentment, disrespect, and disunity. You don't stamp out a bad idea by repressing it; you stamp it out with a better idea.

My better idea is to fly the flag at home, not because the law tells me to; not because there is something that says this is what I have to do to show respect; I do it because, as an American, I want to.

I am immensely proud of being one of the two Senators who has been given the opportunity to represent the State of Vermont. I fly that flag out of pride. Frankly, I am an ornery enough Vermonter that if there were a law that said as a Senator I had to fly that flag, I would not do it. I do it because I want to do it.

It is with the same sense of pride that I saw my son march in uniform with that flag flying. It is the same sense of pride when I see that flag flying over this Capitol Building every day when I drive to work.

The French philosopher Voltaire once remarked that liberty is a guest who plants both of his elbows on the table. I think what he meant by that is that liberty is sometimes an unruly, even an unmannerly and vulgar guest. Liberty demands we be tolerant even when it is hard to do so.

Our freedoms in this country are protected by the constitutional guarantee that dissent must be tolerated whether it is expressed in polite and deferential tones or in a crude and repugnant manner. We are a mature enough political community to know what every child knows: Unlike sticks and stones, words and expressions need not hurt us. It certainly does not justify the loss of rights that protect the liberties of us all.

Especially despicable gestures are hard to tolerate, but we do so because political expression is so central to what makes America great and what protects the rights of each of us to speak, to worship as we choose, and to petition our Government for redress.

As I have said before, I have taken such pride in going to countries with dictators, countries that require a law to protect their flags and their symbols, and in saying: We do not need such a law in our country because in this great Nation of a quarter of a billion people, the people protect our symbols, not because they are forced to do so but because they want to do so.

I was brought up to believe the first amendment is the most important part of our democracy. It allows us to practice any religion we want or no religion if we want. It allows us to say what we want, and the Government cannot stop us.

What does that mean? It means we are going to have diversity--diversity in religion, diversity in thought, diversity in speech, diversity that is guaranteed and protected in this Nation. And when you guarantee and protect diversity, then you guarantee and protect a democracy, because no real democracy exists without diversity. When you exclude and stamp out diversity, then I guarantee, you stamp out democracy, whether it is the Taliban or any of the totalitarian governments of history. If diversity, dissent, and free speech are stamped out, democracy goes with them.

American democracy has succeeded because we have found a way to live with that unruly guest with his elbows on our table of which Voltaire spoke, and to acknowledge acts which are disrespectful and crude and may, nonetheless, be lawful.

We protect dissent because we love liberty, not because we oppose liberty, but because we love it. The very impiety of these acts puts us to the test as votaries of liberty.

Wendell Phillips, the great New England abolitionist, wrote:

The community which dares not to protect its humblest and most hated member in the free utterance of his opinion, no matter how false and hateful, is only a gang of slaves.

No man disagreed more vehemently with Wendell Phillips on the burning issues of their day than Senator John C. Calhoun of South Carolina. Yet Senator Calhoun came to much the same conclusion in a speech on the Senate floor in 1848--more than 150 years ago. He said:

We have passed through so many difficulties and dangers without the loss of liberty that we have begun to think that we hold it by divine right from heaven itself. But it is harder to preserve than it is to obtain liberty. After years of prosperity, the tenure by which it is held is but too often forgotten; and I fear, Senators, that such is the case with us.

I represent a State that has a proud tradition of defending liberty, a State that encourages open debate. We are the State of the town meeting. You have never heard open debate, whether as a Member of this great body or the other legislative body, until you have been to a Vermont town meeting. There is debate, there are expressions, there is heat, and there is often light.

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, not the passions of the times.

But 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. In fact, Vermont did not join the Union until the Bill of Rights was ratified and part of this country's fundamental charter.

We are the 14th State in this Union. But we waited because we were so protective of our own liberty. At one time, we declared ourselves an independent republic. We wanted to make sure our people had their liberties protected. We in Vermont waited until the Bill of Rights was part of the Constitution.

Following that tradition, this Vermonter is not going to vote to amend the Bill of Rights for the first time since it was adopted, and certainly not going to be the first Vermonter to do that.

Vermont sent Matthew Lyon to Congress. He cast the decisive vote of Vermont for the election of Thomas Jefferson when that election was thrown into the House of Representatives. 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. He was locked up.

Vermont showed what they thought of the Sedition Act. They showed what they thought of trying to stifle free speech. Vermont said: Fine, Matthew Lyon is in jail. We will still reelect him to Congress. And, by God, we did. Why? Because we are saying: Do not trample on our right of free speech.

Vermont served the Nation again in the dark days of McCarthyism when I think probably one of the most remarkable and praiseworthy actions of any Vermont Senator, certainly in the 20th century--the outstanding Vermont Senator, Senator Ralph Flanders--he stood up for democracy in opposition to the repressive tactics of Joseph McCarthy. When so many others ran for cover in both parties--both Republicans and Democrats--Senator Ralph Flanders of Vermont, the quintessential Republican, conservative, a businessman, came to the floor of the Senate and said enough is enough, and asked for the censure of Senator McCarthy.

Vermont's is a great tradition that we cherish. It is one that I intend to uphold.

The New York Times had it right earlier this week when it wrote in its editorial, on Monday:

If the Senate truly respected the Constitution it is sworn to uphold, it would not be trifling with the Bill of Rights and its precious guarantee of freedom of speech. Yet that is exactly what the Senate is doing as it considers the so-called flag desecration amendment--a mischievous addition to the Constitution that would weaken the right of free expression by allowing federal laws banning physical desecration of the flag.

The Washington Post also opposed this amendment in a recent editorial. It noted that flag burning is `only one among many types of offensive expression that the First Amendment has protected throughout American history.' Then they added:

The principle that `Congress shall make no law' restricting speech loses much of its power when exceptions begin turning the `no' into `only a few.' The political points senators win by supporting this amendment are not worth the cost.

The first amendment says: `Congress shall make no law.' It does not say: Congress shall not make a bunch of laws or Congress shall not make some laws or Congress shall not make little laws versus big laws restricting speech, or Congress should not make laws on Monday versus Friday restricting speech.

It says: `Congress shall make no law.'

I remember being at an oral argument in the U.S. Supreme Court when I was a young law student, and Hugo Black was saying: I read the Constitution, which says `Congress shall make no laws', to mean `Congress shall make no laws.' I find it pretty clear.

The Chicago Tribune said this:

The amendment is a gross overreaction to a non-problem. Incidents of flag burning are exceedingly rare, and they do no harm beyond causing legitimate disgust among patriotic Americans. Disgust, however, is not an adequate reason to take the extraordinary step of altering the nation's founding document--and altering it to curtail one of our most fundamental liberties.

So many times I read editorials from the Washington Times, especially those that say that Congress takes, too often, a liberal bend. The Washington Times today said this in their editorial--and they oppose this amendment--they said they oppose it because `it would be the only standing constitutional amendment to expand--not curtail--the power of the federal government.'

They went on to say:

Laws reflect a nation's culture and Constitution. Both govern a people's relationship with the government. Sometimes, however, the two collide and the nation's leaders must decide between expressing the culture through law or abiding by constitutional restraints that limit government powers to do so. . . . The founders adopted the first 10 amendments, now called the Bill of Rights, as more than simply limits on Government's power, but rather an enumeration of rights on which Government could not trample.

Think of that. They are not saying, here are some extra powers we have in the Government. Rather, they are saying no to the Federal Government. These are rights you cannot step on. These are rights that belong only to the American people. These are rights that do not belong to a government. They do not belong to the Congress, to the executive branch, or the judicial branch. They belong to all of us, today a quarter of a billion proud Americans.

The Washington Times went on to say:

Conservatives in the Senate should take this opportunity to burn a flag--the white flag the faint-of-heart seem to fly on every tough issue. It is time to say, `We trust the American people with their flag'--with a vote against this constitutional amendment.

That is what I say: Trust the American people. The vast majority of the people in this great country are patriotic. They respect the symbols of our Government. There isn't a rash of flag burning around the Nation. You don't see people running out to do it because we respect our flag, we respect our Nation, and we don't need a law to tell us to do that. In fact, that respect is diminished if we are told we have to respect the symbols of our Government rather than doing it from our heart.

Through this debate this week, some proponents of the constitutional amendment expressed their view that this is a nation in moral decline and that amending the Constitution to punish flag burning is thereby justified. I disagree. I would not put down the United States that way. I believe this Nation is strong. I believe there is far more civic virtue to the American people than some credit. I know that is the case in my State of Vermont. I know it when I go on line each week with the children of our State in grade schools and high schools around Vermont answering their questions. I sense a civic pride. I do not sense a moral decline. I sense a great nation moving into an even greater century.

I am not a fan of what in some quarters passes for culture nowadays, but let us not have a constitutional amendment to lash out at crude cultural influences. Let us discuss the issue of civic virtue. In fact, we in the Senate play a role, an important one, in setting the level of civic virtue in this Nation. So maybe a good place to start would be with ourselves and with our institution. It is not just what we say here that is important; it is what we do here.

Instead of telling the American people, the rest of the American people beyond the 100 here, what they can and cannot do, maybe we should talk about what we do and how we do it. We honor America when we in the Senate do our jobs, when we work on the matters that can improve the lives of ordinary Americans.

I began this debate by urging the Senate to conclude action on the juvenile crime conference. I urged the Senate to vote on increasing the minimum wage, to confirm judges our courts and people need. We have 77 vacancies today. I urged the Senate to pass a Patients' Bill of Rights and privacy legislation and other legislation that can make a difference today. Then we set an example for the Nation. As this debate concludes and after we vote on this, let us return to that hope and message.

Ours is a time of relative peace and prosperity. We should praise that. Because of that, it is certainly not the time, if there is any, to tinker with the fundamental framework that has helped make this country the land of opportunity and diversity and vitality it has been for more than 200 years.

The proposed amendment to the Constitution would do harm to the first amendment--protections that gird us all against oppression, especially oppression of momentary majority thought. It violates the precept laid down more than 200 years ago that `he that would make his own liberty secure must guard even his enemy from oppression.' It undercuts the principle that a free society is a society where it is safe to be unpopular. A nation may lose its liberties in an instant of imposed orthodoxy.

I am sure many of us have read the letter written in 1787 by Thomas Jefferson in which he observed:

If it were left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter.

For me, presented with the stark choice between an undefiled flag and an undefiled Bill of Rights, I, too, must choose the latter.

If somebody were to cruelly desecrate the flag I proudly fly at my home, then I would replace that flag. I would buy a new flag. But if somebody misplaces, changes, or diminishes the Bill of Rights that protects me, protects the other 99 Senators, that protects a quarter of a billion Americans, I can't replace that. I can't go to the store and buy a new Bill of Rights. I cannot start the process of 200 years ago over again. I cannot go back and say, because we have spent 200 years growing and maturing as a nation in protecting our rights under the Bill of Rights, now we can ignore all that because we have changed the Bill of Rights.

Don't diminish it. There are a lot of things that are unpopular, but we protect them. I think of the debate when I was a young prosecutor. Decisions would come down saying you had to warn criminal suspects of their rights--first the Escobedo case and then the Miranda case. I remember people, both in law enforcement and outside, saying we have to amend the Constitution. Some said we had to impeach the whole Supreme Court. We have to amend the Constitution. How dare they say these criminals must be warned of their rights? We want to be warned of our rights because we are not criminals. But the guilty accused have to be warned of their rights? What a terrible idea.

We got through that. What happened? Training of law enforcement got a lot better. The police got a lot better, the courts got a lot better, the prosecutors got a lot better, and our Nation got better. Today there are still people who are arrested or stopped by the police who are totally innocent, and they have their rights. They can stand on those rights. How many times have we said: I am an American; I have my rights? Well, it is true. We have wonderful rights in this country. That is why we are the strongest democracy in the world. Let's not diminish those rights.

Ours is a powerful constitution, all the more inspiring because of what it allows and because we protect each other's liberty. Let us be good stewards. Let us leave for our children and our children's children a constitution with freedoms as great as those bequeathed to us by the founders, patriots and hard-working Americans who preceded us. If we do that, successive generations will bless us, they will praise us, we will have a stronger nation.