Closing Statement Of Sen. Patrick Leahy
On Senate Debate Of Flag Desecration Amendment
June 27,  2006

As we close this debate and move on to a vote on this proposal, I commend to all Senators the words of the senior Senator from Hawaii, a war hero and veteran, a patriot, an American of the first order.  He was long denied the Congressional Medal of Honor that he earned long ago and paid for dearly.  He knows why he fought and sacrificed.  No one on this Floor has fought harder for this country, for its flag, for our freedoms or for our veterans and their families.  He has shown characteristic leadership and courage in his statement today against doing damage to our Constitution through this proposed amendment.  I am honored to stand with him in this fight to preserve our Bill of Rights.

The action by the Republican leadership on this amendment reminds me of the action they forced in connection with the Terri Schiavo case.  Then the President hurried back from a vacation with great fanfare to sign a bill rushed through the Republican-led Congress to intrude into a family and personal tragedy.  The politicians overreached and the American people saw through it.  Here, too, this election-year exercise will be seen for what it is. 

This is the second constitutional amendment that the Senate has considered this month in the Republican run up to the November election.   Of course, among the amendments the Republican majority has chosen not to consider is the one promised by the 2000 Republican Party Platform, to require a balanced budget.  Even Republican partisans must be embarrassed at the deficits that the Bush-Cheney Administration and the Republican Congress have generated as they turned an historic budget surplus into an historic deficit.

 This proposed amendment regarding flag desecration is another in a series of amendments Republicans have pressed that would result in restricting the rights of the American people.  It is one of more than 60 constitutional amendments introduced so far in this Congress alone, and more than 11,000 since the First Congress convened in 1789.  Can you imagine what the Constitution would look like if even a small fraction of these amendments had been adopted?  The Constitution that we now revere as fundamental law, that provides us with unity and stability in times of trouble, would be like the old French Constitution -- filed under “p” for “periodicals.”   We honor our Senate oath when we “support and defend” the Constitution.  That is what I will be doing by voting today to uphold the Constitution and by voting against amending it.        

I am encouraged by the Senate’s bipartisan rejection of action on S.J. Res.1, the proposal to federalize marriage by way of a constitutional amendment.  Forty-eight Senators voted against cloture, and I believe that others who voted in favor of more debate were nonetheless troubled by the proposal.  The failure of the Republican leadership to obtain even a simple majority of Senators to support their efforts, on a procedural vote, should indicate to them how unwise it is to abuse the Constitution in a partisan election-year tactic.

 Like the marriage amendment, the flag amendment would artificially create division among the American people.  The timing of this consideration, four months before the mid-term election, raises concerns, again, that the Constitution is being misused for partisan purposes.  That is wrong.

 We act here in the Senate as stewards of the Constitution, guardians and trustees of a precious legacy.  The truly precious part of that legacy does not lie in outward things – in monuments or statues or flags.  All that these tangible things can do is remind us of what is truly precious:  our liberty.

 This proposed amendment would be the first amendment to the Constitution that would narrow the precious freedoms enjoyed by Americans under the Bill of Rights.  The infringement would fall on the First Amendment, the cornerstone and foundation of all of our rights, of which we must be especially protective.  The First Amendment has stood up in times of war, during times of bitter protest.  It has been one of the rocks on which our national unity and our national stability are built.

 The proposed amendment is a wrong-headed response to a crisis that does not exist.  It would be an unprecedented limitation on the freedom Americans enjoy under the Bill or Rights and would do nothing to bolster respect for the flag.  Respect for the flag flows from the freedoms we enjoy and from the sacrifices of those who have protected that freedom.  Our cherished flag is the symbol of our Nation and of the Constitution that is the foundational keystone of our Republic, and of our freedom.  This is about defending the Constitution, my friends, for which our flag stands.  Each generation of Americans owes the next generations the effort and the dedication it takes to pass along the torch of freedom, undiminished.  We owe it to them, and to those who have sacrificed so much for us, to cherish and to protect freedom, and the Constitution which is the written promise of that freedom. 

 Rather than face the solemn responsibility of justifying an amendment to the Constitution, proponents of S.J. Res 12 have urged that we just pass it on to the States and let them decide.  They said that Senators should abdicate their responsibility to exercise their best judgment and simply pass the buck.  I could hardly believe my ears.

 Have we utterly forgotten the words of James Madison and the conservative conception of amendment the Founders built into our Constitution?  The Constitution intentionally makes it difficult to pass amendments to our fundamental law.  No amendment can pass unless every level of government, from the House to the Senate to the States, overwhelmingly supports it.  Our system is undermined if each institution of government does not exercise independent judgment, if we do not fulfill our constitutional responsibility.

 This is the fifth time that this body has considered a constitutional amendment to punish flag burners.  Some of us have voted on the proposal before; others have not.  But either way, we are undertaking the gravest of responsibilities.  We are taking in our hands the inalienable rights of Americans, today and the generations that follow long after we have gone.  We are handling the most precious heirloom that we have, the finest thing that we can hope to pass on to our children and grandchildren.  I would hope that at this of all times we would give the Constitution the respect that it deserves and support and defend it.

 This week we returned to use what little time left to the Senate this year to revisit a debate on that has wisely been rejected in this chamber four times in the last 17 years: a proposed amendment that would roll back our First Amendment freedoms for the first time in our nation’s history.  While we devote precious floor time to debate this matter, the nation is gripped by the ongoing war in Iraq, the continuing threat of terrorism, soaring energy and health care prices, rising inflation, and a burgeoning deficit.

Indeed, this debate is another illustration of the Republican leadership’s disregard for the needs of the American people and the institutional responsibilities of this body.  They continue to mistreat our Constitution as if it were a bulletin board on which to hang political posters or bumper stickers.  The Constitution is too important to be used for partisan political purposes, and so is the American flag.   

Cynicism and Symbolic Patriotism

The timing of this debate raises the question of why the Republican leadership has made this issue its top priority in the face of an unfinished agenda of legislative matters that do concern Americans day in and day out.  The Senate has hardly made progress on a legislative agenda.  We have yet to consider any of the 13 appropriations bills for the year.  We have yet to enact a budget resolution, which was required by law to be in place on April 15. We have yet to enact a lobbying reform bill, a comprehensive immigration bill, or pension protection legislation.  We have yet to consider or pass asbestos litigation reform legislation, patent reform legislation or the reauthorization of the Voting Rights Act.  We have yet to pass a long overdue raise in minimum wage, to take action to lower gas prices, health care costs or health insurance costs.  Instead, with less than 10 weeks left in this session of Congress, the Republican leadership will work on none of those important matters.

The amendment we consider today would artificially create division among the American people, and the timing of this debate -- squarely in the middle of an election year – demonstrates, again, that the Constitution is being misused for partisan purposes.  The Constitution deserves our respect, vigilant protection and in the words or our Senate oath our “support”.  We have a duty to defend it.  The Constitution is not a blog for venting political opinions, curry favoring with voters or trying to bump up sagging poll numbers.

The flag is an important symbol of all that makes America great.  But the cynical use of symbolic politics in an election year will not address the very real needs of veterans and other Americans that are being left unmet by this Administration and the Republican Congress.

Combat Veterans’ Reminder of Flag’s Meaning

I know that many veterans support the flag desecration amendment and I respect their views.  We must not forget though that there also are many veterans who oppose it.  I appeared with a number of distinguished veterans on Flag Day who spoke about their dedication to the principles that make this country great and for which they fought and sacrificed.  Those principles include our precious freedoms under the First Amendment.  These veterans of World War II, Korea, Vietnam, the First Gulf War and Iraq made clear that they fought for what the flag stands for, not just the symbol itself. 

Former Senator John Glenn, a combat veteran, wrote: “The flag is the Nation’s most powerful and emotional symbol.  It is our most sacred symbol.  And it is our most revered symbol.  But it is a symbol.  It symbolizes the freedoms that we have in this country, but it is not the freedoms themselves.” 

The late John Chafee, a distinguished member of this body and a highly decorated veteran of World War II and Korea, opposed this amendment because, he said: “We cannot mandate respect and pride in the flag.  In fact … taking steps to require citizens to respect the flag, sullies its symbolism and significance.”

A Change That Limits Rights

Flag desecration is a despicable and reprehensible act.  We agree with that -- all of us agree that it is contemptible.  That is not the issue, instead, the issue before us is whether we should amend the Constitution of the United States with all the risks that entails and whether, for the first time in our history, we should narrow the precious freedoms ensured by the First Amendment.  Should we amend the First Amendment so that the government can prosecute the handful of individuals who show contempt for the flag, those General Powell called miscreants?  Such a monumental step is unwarranted and unwise.  

We are being tested.  This generation of Americans is being tested by the threat of international terrorism.  America wins when it meets that challenge without allowing those who threaten us to compromise us.  We suffer losses not only when we suffer attacks as we did toward the end of President Bush’s first year in office, but also when we those freedoms that define us as Americans.  For the Congress to surrender our fundamental rights as Americans as proposed in the constitutional amendment is wrong.

Patriotism Does Not Come By Decree

Following the very real attacks on 9/11, Americans embraced the flag like never before, proudly displaying flags and flag symbols as a sign of unity and strength in the wake of those horrible acts against our nation.  People around the world grieved for us, cared for us, and joined with us to fight terrorism.  Over time, missteps and arrogance by the Bush-Cheney Administration have alienated much of the world.  Still, Americans of all political persuasions have not needed a law to tell them how precious our freedoms are or how to honor the Stars and Stripes.  

Supporters of this constitutional amendment seem to believe that Americans need rules about respecting the flag punishable by law.   I strongly disagree and the American people have already proven them wrong.  The American people do not need a lesson in cherishing and honoring our flag and the Republic for which it stands.  That may be necessary in Saddam Hussein’s Iraq or in Stalin’s Soviet Union or in Castro’s Cuba, but not in America.

In fact, respect cannot be coerced or compelled.  It can only be given voluntarily.  We respect and love our country, but not because we are told to.  Americans do not love our country because we would be punished if we did not.  Some may find it more comfortable to silence dissenting voices, but coerced silence creates resentment, disrespect, and disunity.  I proudly fly the flag at my farm in Vermont because, as an American, it is what I choose to do.

In every hamlet and city and on every rural route in America, you can see our flag being flown with pride.  Americans in overwhelming numbers are honoring our flag, not defacing it.

Of course, there are times when individuals deface the flag or violate the rules for its care.  For example, President Bush was captured on film signing a hand-held flag at a campaign rally in the summer of 2004.  Appropriate or not, these acts are protected by our Constitution.  They do not need to be punished by Congress after we pass a constitutional amendment restricting the First Amendment rights of all Americans.

The Freedom For Which It Stands

In all of the hearings, all of the debate that we have devoted to this topic over the past 17 years, not one single person has testified that he respects the flag less because a protestor burned it, wrote on it, sewed it in the seat of his pants, or otherwise misused it.  Not one. 

Not one single person has testified that they love our country less because Americans are free to express themselves in this way.  Not one.  There is not a single indication that any act of flag burning has lessened the respect that any American has for the flag or for our country.  It would be pathetic if our love of country or respect for its fundamental principles was so weak that it could be diminished by such an act.  We know that it is not.

The truth is just the opposite.  Occasional insults to the flag do nothing to diminish our respect for it.  Rather, they remind us of our love for the flag, for our country, and for our freedom to speak, think and worship as we please.

Our flag is a cherished symbol.  As are the freedoms for which it stands, including the freedom to express unpopular speech or ideas -- even extremely unpopular ideas.

Veterans’ Priorities Ignored

As I have said many times throughout this debate,  I wish the Senate would, instead, use its time to discuss and solve the real problems that real Americans are facing right now, instead of trying to stir public passions for political ends.  

I respectfully suggest that in the less than 10 weeks left to us in session this year, the Senate’s resources would be better spent working to improve veterans’ health care  services, survivors’ benefits and protecting veterans’ and Americans’ privacy.  There are so many issues that we could turn to that would help improve the lives of our veterans and their families.  Why not focus on them?

Just today on the front page of the newspaper, we learned that this Government’s bureaucratic bungling has resulted in widows of those who have served this nation and sacrificed for all of us are being denied the survivors’ benefits to which they should be entitled.  This news follows closely public reports that post-traumatic stress disorders among our veterans are on the rise.  

Instead of seeking to turn the flag into a partisan political weapon and the Constitution into a billboard for political slogans, for partisan gain, we could be spending time debating these real issues or much-needed funding for services to our veterans.  This President’s budget requests have consistently fallen short of the levels needed to provide necessary services and care.  President Bush’s budgets force our veterans to subsidize their government health care and simply do not account for the increase in demand for VA services due to the Iraq war. 

We could also be taking real action to prevent the kind of data losses that just affected millions of our veterans.  We just witnessed the largest theft of private information from the Government ever, the loss of information on more than 26.5 million American veterans, including more than 2 million who are in active service, nearly 80 percent of our active-duty force and a large percentage of our National Guard and the Reserve. 

Last year, Senator Specter and I introduced the Personal Data Privacy and Security Act, which requires federal agencies and private data brokers to give prompt notice when sensitive personal information has been breached or stolen.  The Judiciary Committee overwhelmingly approved this bill last fall, but almost a year later, the Senate has still not acted on this legislation. Had this bill been in enacted, it would have required the VA to promptly notify the millions of veterans now at risk of identity theft about the theft of their personal data.  Our bill also addresses the Government’s use of personal data by putting privacy and security front and center in evaluating whether data brokers can be trusted with Government contracts that involve sensitive information about the American people.

The nation’s veterans – who have been willing to make the ultimate sacrifice for their country – deserve to have the best tools available to protect themselves and their families from identity theft.  The Senate should be acting to consider and pass comprehensive data privacy and security legislation. 

Conclusion

Sadly, the list of what we are not accomplishing goes on and on.  The way things are going, under Republican leadership, this session will make the “do nothing” Congress against which President Harry Truman ran seem like a legislative juggernaut.

The days we have spent on this amendment could be spent more productively on any of the matters I have mentioned.  There are less than 10 weeks remaining in the Senate’s scheduled work year.  It seems that even with all that remains undone, at this point in this election year, floor time is available only for matters that advance the Republican’s narrow political agenda.

Republicans have the Senate majority; they control the schedule, they set the priorities.  In my view, it reflects a strange set of priorities to think our national interest is best served at this time by debating a constitutional amendment to roll back the Bill of Rights for the first time in our history. 

I treat proposals to amend the Constitution with utmost seriousness, for it is a serious responsibility.  I began this debate by noting my home state of Vermont’s tradition of independence and commitment to the Bill of Rights.  Vermont did not and would not become a State until 1791, the year the Bill of Rights was ratified. At one time, we declared ourselves an independent republic.  

I plan to proudly uphold that tradition today by voting against this amendment, and I hope, although likely in vain, that the Senate will move on to more pressing matters that directly affect the lives and livelihoods of the American people.

# # # # #