Flag Desecration Amendment

FLAG DESECRATION AMENDMENT -- (Senate - June 28, 2006)

Mr. REED. Mr. President, yesterday I opposed Senate Joint Resolution 12, which would have created a constitutional amendment allowing Congress to ban desecration of the flag.

As a graduate of the U.S. Military Academy and a former officer in the Army, I am deeply offended when people burn or otherwise abuse this precious national symbol.

I also believe, however, that the values and beliefs that the American flag represents are more important than the cloth from which this symbol was created. Prominent among these beliefs are the right to voice views that are unpopular, and the right to protest. In fact, these fundamental values, preserved by our Constitution, have distinguished our Nation for more than 200 years. The Framers understood that democracy cannot thrive, or even survive, without freedom of expression. Colin Powell has rightfully said, ``The first amendment exists to ensure that freedom of speech and expression applies not just to that with which we agree or disagree, but also that which we find outrageous. I would not amend that great shield of democracy to hammer a few miscreants. The flag will be flying proudly long after they have slunk away.''

I oppose this amendment not because I condone desecration of our flag, but because I celebrate the values our flag represents. Flag burning is despicable. However, the issue is whether we should amend our great charter document, the Constitution, to proscribe it.

In The Federalist, James Madison declared that the Constitution should be amended for ``certain great and extraordinary occasions.'' Except for the prohibition amendments, since the adoption of the Bill of Rights, we have only amended the Constitution for ``great and extraordinary occasions:'' abolishing slavery and giving African Americans the right to vote; extending voting rights to women; and regulating elections and the tenure of the Presidency. Of the 27 amendments, 17 protect individual rights and liberties. In fact, we have never amended the Constitution to constrict rights that other amendments already guarantee.

So are we facing a ``great and extraordinary occasion'' justifying the use of a constitutional amendment? I would argue no.

First, an amendment permitting government restraints on free expression cannot compel loyalty to or love for either our country or our flag. The proposed amendment would pronounce to the world that we value free speech, except when it offends, that we tolerate free expression, except when it is demoralizes.

Second, is this a problem needing such strong medicine? Are we facing an epidemic of flag burnings? In fact, over the past 10 years, only 7 incidents of flag desecration have occurred per year on average, most of which have been successfully prosecuted under laws prohibiting vandalism, theft, disorderly conduct, and disturbance of peace. Indeed, passing such an amendment would probably do more to promote flag burning by malcontents than any other action this Congress could take.

Third, proponents of such an amendment declare that it would boost the morale of our troops and help restore some of the American values so basic to the fabric of our country. But, as one veteran recently wrote, ``I did not believe then, nor do I believe now, that I was defending just a piece of geography, but a way of life. If this amendment becomes a part of our Constitution, this way of life will be diminished.'' I cannot help but believe that a more appropriate expression of support for our troops would be providing them with the equipment they need in the field, better benefits for their families, and an adequately funded medical system at home.

Although I oppose a constitutional amendment, I did support an alternative approach offered by Senator Durbin. Senator Durbin's amendment contained two elements. First, it would have created a statutory prohibition against desecration of our flag. This part of his amendment was drafted to follow the guidance of the 2003 Supreme Court decision in Virginia v. Black, which upheld a Virginia law banning cross burning that is intended to intimidate. The Durbin amendment took a similar approach and prohibited desecration of the flag when it is intended to incite violence. The Durbin amendment also would have promoted respect for families of deceased members of the Armed Forces by prohibiting demonstrations at their funerals. The amendment was narrowly tailored to make these disrespectful demonstrations punishable.

In sum, debating a constitutional amendment on desecration of the flag, although politically popular, is not how the Senate should be spending its few remaining legislative weeks. But this is a campaign year, and the majority appears to want the Senate to spend time on topics which defer and deflect us from concentrating finding solutions to pressing issues facing our Nation: restoring fiscal discipline, creating safe and affordable housing for working families, securing our borders, expanding health insurance coverage to the uninsured, ensuring students have the skills and tools to compete in an ever-expanding global economy, and redeploying our troops as quickly as possible out of Iraq. Unfortunately, the majority has provided limited time to debate most of these issues.

I hope that with the rapidly dwindling number of days left in this session we will work to address the very real concerns that impact American families every day. I fear, however, that this debate is only a harbinger of what is to come and very clearly signals why we need a new direction.

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