Proposing an amendment to the Constitution of the United States with respect to the right to life.

Mr. Speaker, I offer an amendment in the nature of a substitute.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, this marks the sixth consecutive term of Congress in which I have engaged in this debate. I actually, when I first came to Congress and the first time I had the opportunity to participate in this, I resented having to go through this. But over the years I have come to believe that this is a healthy debate; and if we conduct it in a dignified way, the debate actually can be good for the entire country, and people can come away with a greater understanding and appreciation of how delicate our Constitution framework is.

This is about how individuals in our country perceive patriotism, the rights of free speech, the rights of protecting the views of people who quite often they may disagree with in content, but that is what our country has been about.

So I want to start by complimenting the chairman and the ranking member for the dignified way the debate has proceeded up to this point. And I hope that this amendment in the nature of a substitute does not get us off onto a different track, because this is the second or third time I have offered the amendment in the nature of a substitute, and I did it originally for the purpose of trying to get to a higher quality of debate and forcing my colleagues and whoever may be listening to the debate to think about some of these things.

What does the first amendment mean? What rights do we owe to people in our country whose views we may disagree with? What rights do we owe to the people in our country who may express those views in ways that we disagree with?

And I am confident that everybody in this body would think that desecration of the flag, burning of the flag would not be something that we would be supporting, so that is not what this amendment is about.

My amendment simply says if we are going to do a constitutional amendment, it should not just say that Congress has the authority to pass a law that prohibits the physical desecration of the flag. Whatever we do should be subject to the first amendment to the Constitution. And the amendment under my version would read, not inconsistent with the first article of amendment to the Constitution: ``The Congress shall have power to prohibit the physical desecration of the flag of the United States.''

My amendment, I believe, recognizes the long-standing legacy of the Bill of Rights. In over 200 years of history, our Constitution has been amended only 27 times and the Bill of Rights has never been amended, not once has the Bill of Rights been amended; and this proposed resolution would be the first time to do that.

I understand that the proposed resolution seeks to uphold the integrity of our flag; but my amendment seeks to ensure that the principles for which the flag stands, particularly freedom of expression and freedom of speech, are also reserved.

The first amendment to the United States Constitution stands for the proposition that all voices of dissent should be heard without governmental suppression. Disrespect for the flag is offensive to every Member of this body, but this is not a debate about patriotism. It is not a debate about whether flag desecration is good or bad. It is a debate about the values that underlie our Constitution. And I think former Secretary of State Colin Powell said it best when he said these words:

``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, the Constitution, to humor a few miscreants,'' he said. ``The flag will be flying proudly long after they have slunk away.'' And that is the end of his quote for my purposes today.

It is the underlying values represented by the flag, not the cloth on which the stars and bars are sewn that our Constitution protects. Those are the values my amendment would preserve.

Mr. Speaker, following the horrific acts of terrorism against our country, our citizens were repeatedly cautioned not to cower in the face of terrorism. Do not curtail our freedoms, we were told, for to do so would be to surrender our way of life, to give up and give in to the terrorists. The terrorists would win.

I think if we pass the amendment as it has been proposed, we give in to those miscreants, as Colin Powell has characterized them, those people who we disagree with. We should be protecting their rights also to free speech.

I want to put this in context. I started by saying that I used to resent this debate and I would tell you, Mr. Speaker, that I came to Congress thinking that, I guess, I thought I had a monopoly on what the meaning of the Constitution was. And there is a history to that, because I had graduated from Yale Law School, took my constitutional law from Professor Robert Bork, who became so controversial when he was nominated to the United States Supreme Court. And in that class with me was a student by the name of Duncan Kennedy who is now a professor at Harvard Law School and for whom a whole theory of law has been patterned.

In that class with me, in that constitutional law class, was a guy named Paul Gewirtz, who is now a professor of constitutional law at Yale University Law School. So it was one of those law school classes that people would die for. And we analyzed the first amendment back and forth, right and left, Bork against Duncan, Bork against Gewirtz. I mean, there were good students in the class and then there were people like me who were sitting in the back of the room hoping that nobody would ever realize that we were there and I could avoid getting involved in that high level of debate.

But I was listening and understanding that the Constitution, the first amendment had different meanings to different people. And I thought I got a good balanced view. Actually, I thought I got a good balanced view until I went back to North Carolina and went into a law firm that was generally known as a civil rights law firm.

And one day my senior law partner, a gentleman by the name of Julius Chambers, called me in and said, I want you to go to eastern North Carolina to one of the counties in which Native Americans represent a high portion of the population, because a number of the Native Americans in that county have been charged with parading, using tomahawks, parading around; and they have been charged with resisting arrest and various other criminal offenses. And he did not tell me what they were down there demonstrating about. He just told me to go down there and represent them.

I went and I started my interviews with the Native Americans, and during the course of my interviews with them, it became apparent that the reason that they had these tomahawks out there and they were demonstrating and parading was that they had a desire not to have to go to school with black people. They thought that the schools that they were going to be sent to with African Americans were inferior, and they did not want to do it.

Well, I being an African American myself, swallowed very hard and said, What has my law partner gotten me into? I could not wait until the end of the day to get in my car and race back to Charlotte, North Carolina, and confront my senior law partner.

I walked in and I said, Chambers, why would you send me to this county to represent these Indians who were demonstrating against going to school with African Americans? His response taught me more about the first amendment than either Robert Bork or Duncan Kennedy or Paul Gerwitz or any of the discussions that I had participated in in law school. He simply asked me one question. He said, Do you not believe in the first amendment?

This is a difficult issue, and this is not about patriotism, and I have come to understand over the years of debate that we have had this amendment under consideration, I started out saying to people on the opposite side, people like the gentleman from California (Mr. Cunningham) and people who served their country, You are unpatriotic because you do not agree with me about my interpretation of the first amendment; the first amendment was passed to protect the right of people to demonstrate and burn flags and you are unpatriotic because you do not agree with me.

But then I started to listen to what the gentleman from California (Mr. Cunningham) was saying and what my colleagues were saying and studied this issue more. Could it be that Justice Scalia and Justice Rehnquist, two conservative jurists, could be on opposite sides of this issue and it not be a difficult issue from a constitutional perspective? That is, can you imagine the debate that was taking place in the Supreme Court? I cannot imagine that Justice Rehnquist looked at Justice Scalia and said, You are unpatriotic because you do not agree with me. I cannot imagine that Justice Scalia looked at Justice Rehnquist and said, oh, no, you are unpatriotic because you disagree with me. They came down on opposite sides of the landmark case.

This is a difficult issue and it is all about what you think ought to be protected under the first amendment. It is not about whether you are patriotic or not.

Well, there is one thing I want for sure my colleagues to acknowledge, that this amendment, when it was first offered, started out just saying there shall be no physical desecration of the flag. For a couple of years it said that, but then the more recent versions of what we are considering today say that Congress shall have the power to prohibit the physical desecration of the flag. That means that Congress must pass a statute, which must then go to the Supreme Court ultimately to be evaluated. So, at some point, the Supreme Court is going to evaluate whether that statute complies with the first amendment or not.

In that sense, the language that I am proposing, I am going to first and foremost acknowledge, is redundant. It just specifically says that whatever we do as a Congress has got to be subject to the first amendment. That is redundant. As my colleagues know, whatever we do as a Congress is supposed to be subject to everything in the Constitution anyway, but I want to remind us that, at the same time, we protect the flag.

A principle of our Nation is also to protect speech, whatever that is; is it burning the flag, is it hollering ``fire'' in a crowded theater? Whatever it is, there needs to be some kind of balance. And this Congress, whether it adopts my amendment or does not adopt my amendment, is going to be subject to that anyway.

The proponents of this amendment who say that this is going to do something earth shattering or that my amendment is going to undercut their proposal, it is just not the case.

I just want to be sure that we acknowledge that whatever we do, we acknowledge it, that the first amendment is just as important as the flag. Just as important. Some people might argue that it is more important than the piece of cloth. My colleagues might argue that it is, that it is equal in value, but we at least need to come to grips with that, and that is what the Constitution, that is what the Supreme Court has been trying to do for a number of years. It is not an easy thing to do.

We have heard a lot of discussion about activist judges. This proposal encourages judges to be activists because it says you are giving Congress the right to prohibit the physical desecration of the flag. Do my colleagues think the Supreme Court is not going to exercise its constitutional responsibilities just because we said Congress can prohibit the physical desecration of the flag? It is going to have to. It is going to have to decide what that

means. It is going to have to decide how we balance this provision, this statute, statutory authority that Congress gives against the first amendment. We are not going to be able to get around the Supreme Court here.

We like to punt these things and pretend that we are doing something earth shattering here, but the Supreme Court, I hope, is still going to be there, and I believe the Supreme Court is going to wrestle with this as they have in the past.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, how much time remains?

Mr. Speaker, I yield myself 1 minute just for the purpose of responding to this.

I do not agree at all with my chair, as much as I respect him, that this codifies anything. What it does is that it codifies and reaffirms and acknowledges the state of affairs that exists right now, that in the final analysis the Supreme Court is the ultimate arbiter of the Constitution and laws of our country. After we pass my amendment or the underlying amendment, the Supreme Court is still going to be the ultimate arbiter of that, and so my amendment neither does that or does not do it.

His amendment does not do it. If the Supreme Court changes its mind, the composition of the Supreme Court changes, and they decide that burning a flag is prohibited, is not protected under the first amendment, then that is going to be the last word on it. We do not have any way to go on that.

So I do not think I can agree with him that I am doing anything different than preserving the state of affairs.

Mr. Speaker, I yield 3 minutes to the gentleman from Virginia (Mr. Scott), my good friend.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I am going to filibuster because I am waiting for some Members who would like to speak on this.

Let me respond to the comments of the gentleman from Virginia (Mr. Goodlatte) that the Supreme Court has amended the Bill of Rights on a number of occasions. It did not amend the language of the Bill of Rights. It amended the interpretation of the Bill of Rights.

On a number of those occasions I have been really unhappy about the way the Supreme Court ruled and took away a right that I thought I had. I suspect if there were ever anybody in this institution who would be, should be railing against the Supreme Court, either the current Supreme Court or Supreme Courts throughout history, it might be the members of the Congressional Black Caucus who would have the highest standing and right to do that because in a number of cases the Supreme Court has ruled in ways that were absolutely counter to our interest.

I just want my colleagues to understand that this document that our drafters crafted for us has survived so much the test of time, the comings and goings of members of the Supreme Court differing in interpretations, as the gentleman from Virginia (Mr. Goodlatte) said. If you want to look at it, they rewrote the Bill of Rights, but never changed the words.

I do not think that every time you get a Supreme Court decision that you disagree with in this country the way to resolve or to express your disagreement is to come to the Congress of the United States and propose that we amend the entire constitutional framework that we are operating under. I do not think that is the way to do it. Sometimes you win; sometimes you lose. Sometimes you have a progressive Supreme Court; sometimes you have a conservative Supreme Court. That does not mean that you do not go back and try to statutorily do what you think that you need to do to amend statutes, but amending our Constitution is an entirely different thing.

So one side of me says this is not a good idea to be amending the Constitution in this way. The other side of me really says this amendment has been made out to be a lot more than it really is because by saying that Congress can pass a statute that prohibits the physical desecration of the flag does not give us any more authority than we now have. We can pass a statute right now that prohibits the physical desecration of the flag.

The question is what would the United States Supreme Court say about that statute once it worked its way through the process and up to the United States Supreme Court. And if we pass this amendment, having amended for the first time in 200 years our Bill of Rights, gone through the whole process, the Supreme Court is still going to have the same right to do that.

This is a great, great discussion vehicle. As I said, I used to resent coming here and engaging in this debate every year or every 2 years. It always comes right before July 4. Somebody is always trying to make a political point. Democrats used to be saying Republicans were unpatriotic. Republicans used to be saying Democrats are unpatriotic. Now people are going whichever way they want to go. This is not a Republican or a Democratic amendment; this is a constitutional amendment. Democrats and Republicans have to exist in our constitutional framework. We have got to operate within our system. That is what I think this is about.

Mr. Speaker, I yield 3 minutes to the gentleman from Alabama (Mr. Davis).

Mr. Speaker, I object to the vote on the ground that a quorum is not present and make the point of order that a quorum is not present.

Mr. Speaker, pursuant to House Resolution 330, I call up the joint resolution (H.J. Res. 10) proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States, and ask for its immediate consideration.

Mr. Speaker, I ask unanimous consent that all Members may have 5 legislative days within which to revise and extend their remarks and include extraneous material on H.J. Res. 10.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I rise today in support of House Joint Resolution 10, which would amend the Constitution to grant Congress the authority to prohibit the physical desecration of the American flag.

Mr. Speaker, the American flag represents the shared history and common future of all Americans and our collective commitment to the preservation of the ideals enshrined in our Constitution. The flag flies proudly in times of peace and war, prosperity and crisis, reminding the world of our unflinching resolve to protect the freedom and equality it symbolizes.

In the early days of the Republic through contemporary times, the flag has rallied and sustained the spirit of the Nation. In World War II, it was carried onto Normandy Beach by soldiers who liberated a continent from darkness, and raised on Iwo Jima to steel the resolve of embattled Marines. During the Cold War, it affirmed the universal values of human freedom and dignity for citizens of countries whose governments ignored both.

Following the attacks of September 11, 2001, the flag was unfurled at the Pentagon and raised from the rubble at Ground Zero to unify the spirit of a shaken Nation. Unique among all American symbols, the flag captures the pride and spirit of the American people and serves as an international symbol of freedom and opportunity.

For the first two centuries of our Constitution's existence, it was permissible to protect America's preeminent symbol from desecration. In 1989, the Federal Government and 48 States had exercised this authority. However, in the same year, a closely divided Supreme Court invalidated those laws by holding that burning an American flag as part of a political demonstration was protected by the First Amendment. The Congress quickly responded to this decision, but the following year in another 5 to 4 decision, the Court struck down the Federal Flag Protection Act in United States v. Eichman. Since 1994, over 119 incidents of flag desecration have been reported, and the flag of the United States remains vulnerable.

Mr. Speaker, the framers of the Constitution recognized that there would be circumstances necessitating changes to the Constitution. Toward that end, they provided the people with an amendment process embodied in Article V of the Constitution. The founders recognized that the constitutional amendment process is absolutely vital to maintaining the democratic legitimacy upon which republican self-government rests. While our courts have the authority to interpret the Constitution, under our system of government, the American people should and must have the ultimate authority to amend it.

As a result, House Joint Resolution 10 does not upset the doctrine of judicial review. Rather, it utilizes a remedy envisioned by the founders to effectuate the will of the people. Moreover, House Joint Resolution 10 will not prohibit flag desecration. Rather, should the States ratify the amendment, it will enable Congress to enact legislation to establish boundaries within which such conduct may be prohibited.

The amendment process is one that should not be taken lightly. However, because of the narrowly divided Johnson and Eichman Supreme Court decisions, the constitutional amendment provides the only remaining option for the American people and their elected representatives to restore protection to our Nation's preeminent symbol.

In December 1792, James Madison asked a question: ``Who are the best keepers of the People's Liberty?'' While it might come as a surprise to some, he did not answer the Supreme Court. Rather, Mr. Madison answered, ``The People themselves. The sacred trust can be nowhere so safe as in the hands most interested in preserving it.''

All 50 State legislatures have passed resolutions calling on Congress to pass a flag protection amendment, and polls demonstrate the overwhelming majority of Americans have consistently supported a flag protection amendment.

Language identical to House Joint Resolution 10 has passed the House on four separate occasions. The Congress must act with bipartisan dispatch to ensure that this issue is returned to the hands of those most interested in preserving freedom, the people themselves.

Mr. Speaker, the flag of the United States is a critical part of America's civic identity. Millions of Americans, including we as Members of Congress, pledge daily allegiance to the flag, and our National Anthem pays homage to it. America's soldiers salute the flag of the United States in times of peace, and generations of America's soldiers have fought and died for it in times of war.

I urge my colleagues to join me in supporting this important measure that provides this unique and sacred American symbol with the dignity and protection it deserves and demands. Pass the resolution.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 5 minutes to the gentleman from California (Mr. Cunningham), the author of the legislation.

(Mr. CUNNINGHAM asked and was given permission to revise and extend his remarks and include extraneous material.)

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I have a deep respect for the arguments that have been advanced by the gentleman from New York and other opponents of this amendment. I disagree with them. And I think the vast majority of the American people disagree with them as well. There has to be a line that is drawn on what is acceptable behavior and what is not acceptable behavior. Most of our criminal code, as well as certain types of civil provisions that contain penalties, do draw the line and have a clear demarcation of what goes over the line and thus should be punished.

I think one of the reasons why we are here today as a result of both the Johnson and Eichman decisions was exemplified by a decision of the Supreme Court of my home State of Wisconsin on April 9, 1998, in the case of State of Wisconsin v. Matthew Janssen. Mr. Janssen was prosecuted for flag desecration because he defecated on the American flag. Then he left a note saying why he did it, which contained a political expression. Using the precedent that was set by the Supreme Court in the Johnson and Eichman cases, the Wisconsin Supreme Court unanimously affirmed the dismissal of the prosecution against Mr. Janssen and wrote an extensive decision that basically agrees with the arguments that were advanced by the gentleman from New York (Mr. Nadler).

But the last paragraph of that decision, I think, is very important; and I am going to read it into the Record. The Wisconsin Supreme Court through Justice John Wilcox said: ``But in the end, to paraphrase Justice Frankfurter, we must take solace in the fact that as members of this court we are not justified in writing our private notions of policy into the Constitution, no matter how deeply we may cherish them or how mischievous we may deem their disregard,'' quoting the Barnette case with Justice Frankfurter dissenting. The Supreme Court of Wisconsin concluded by saying: ``If it is the will of the people in this country to amend the United States Constitution in order to protect our Nation's symbol, it must be done through normal political channels.''

Today, we are doing it through those normal political channels. That is why this amendment should be approved.

Mr. Speaker, I yield 3 minutes to the gentleman from Ohio (Mr. Chabot), the chairman of the Subcommittee on the Constitution.

Mr. Speaker, I yield 5 minutes to the gentleman from Indiana (Mr. Sodrel).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, throughout the history of this Republic, the Congress has proposed constitutional amendments and sent them to the States to overturn Supreme Court decisions that were particularly onerous. The one that comes to mind as coming to the top of the list was the Dred Scott decision. That was based on constitutional grounds, and Congress proposed and the States ratified three amendments, the 13th, 14th and 15th amendment, to make sure that the mistake that was made by the Dred Scott decision would never be repeated again. There was a decision early in the country's history under the Constitution that related to the judicial power of the United States. The 11th amendment was proposed and ratified to correct that. And the Supreme Court also decided that levying income taxes violated the provision of the Constitution on apportionment of taxes, and the 16th amendment was proposed and ratified to correct that problem.

So when there is a court decision that has resulted in consequences that the Congress and the States collectively deem are so bad that it requires an amendment to the Constitution, this Congress has not hesitated to propose an amendment to the Constitution, and the States have ratified it.

Here we have had resolutions of all 50 State legislatures asking that we propose this amendment and send it to the States for ratification, and that is because the instances of flag desecration that have occurred have been deemed by them to be over the line and that the Supreme Court of the United States was wrong in its decision and it needs correction.

I just go back to the quote that I made of the Wisconsin Supreme Court when they effectively invalidated my State's flag desecration amendment. It is up to the people through the constitutional amendment process to make the correction, and that is why we are here today.

Mr. Speaker, I yield 1 minute to the gentlewoman from Michigan (Mrs. Miller).

Mr. Speaker, I yield 3 minutes to the gentleman from Indiana (Mr. Buyer).

Mr. Speaker, I yield 3 minutes to the gentleman from Indiana (Mr. Pence).

(Mr. PENCE asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield 2 minutes to the gentleman from Nebraska (Mr. Osborne).

Mr. Speaker, I yield 3 minutes to the gentleman from Florida (Mr. Stearns).

(Mr. STEARNS asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, the argument that has been made against this amendment is that it infringes upon free speech guaranteed by the first amendment. As all of the people who served as Justices of the Supreme Court during the 20th century, I think everybody would recognize that the strongest first amendment absolutist was Justice Hugo L. Black. Let me read you what Justice Black said in the case of Street v. New York, decided in 1969:

``It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of an American flag an offense.''

The court changed its mind twice at the end of the decade of the 1980s. I do not think that anybody's free speech rights to express whatever they want to say about a policy, about the position of the American Government, about a stand that a candidate makes, a vote that a Congressman makes is going to be infringed by the passage of this amendment.

What is going to be stopped is deliberately burning the symbol of our country or otherwise desecrating it. That is what this amendment seeks to prescribe. And if you want to stop it, vote ``yes.'' If you do not, vote ``no.'' I am voting ``yes.''

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I have listened attentively to the arguments made by the gentleman from North Carolina (Mr. Watt) in support of his amendment, and he said that his amendment is redundant. It is redundant, but it also is a gutting amendment to the base text of the constitutional amendment that we are debating today.

This substitute amendment should be rejected because it would constitutionally ratify the Supreme Court's decision in Texas v. Johnson and United States v. Eichman, rather than empower Congress to pass legislation to protect the flag from physical desecration.

In Johnson and Eichman, the Supreme Court held that flag desecration is expressive conduct protected by the first amendment. These decisions effectively invalidated the laws of 48 States and the Federal Government. In addition, based on these precedents, any law that prohibits the physical desecration of the flag will be struck down as an unconstitutional suppression of free expression, thus defeating the goal of our efforts to provide protection for the flag.

A constitutional amendment must be passed if the flag is to receive legal protection. Under the Watt substitute, the flag would not receive such protection because the Court would simply strike down as inconsistent to the first amendment any implementing legislation enacted into law.

Adoption of the substitute would not only render H.J. Res. 10 ineffective, but it would also constitutionally codify the Supreme Court decisions that a vast majority of the American public were erroneously decided, and which did not exist for the first 200 years of the Constitution's existence.

In other words, if the Watt amendment is passed and then a constitutional amendment is passed and ratified by the States, the Supreme Court can, in the future, recognize that it made a mistake, and that is why this amendment should be rejected.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 4 minutes to the gentleman from Virginia (Mr. Goodlatte).

Mr. Speaker, I yield 2 minutes to the gentleman from New Mexico (Mr. Pearce).

Mr. Speaker, I yield myself the balance of my time.

Mr. Speaker, the major argument that we have heard against the base amendment and in favor of the Watt substitute is that if we do not pass the Watt substitute, we will be amending the Bill of Rights for the first time in the history of this country. That is not true. In the Dred Scott decision, Chief Justice Taney claimed that the fifth amendment's due process clause, which he interpreted to include a substantive right to the protection of property, prohibited restrictions on slave ownership. The three amendments that were passed during the Civil War, the 13th, 14th and 15th amendments, corrected that gross constitutional misinterpretation and it slammed the door shut so tightly that that issue never has been raised again; and our country has been much, much better for it.

In a similar manner, House Joint Resolution 10 seeks to correct two Supreme Court precedents that repudiated 2 centuries of jurisprudence. The time to correct those two precedents is today. We must vote against the Watt substitute amendment which guts the thrust of House Joint Resolution 10 and then pass House Joint Resolution 10 by a two-thirds majority to send it to the other body.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, reserving the right to object, would the gentleman restate the unanimous consent request.

Mr. Speaker, I make a point of order against the motion to recommit.

Mr. Speaker, the motion to recommit is not germane to the original text of the House Joint Resolution 10.

House Joint Resolution 10 proposes an amendment to prohibit the physical desecration of the flag of the United States. The material proposed to be inserted in the motion to recommit, sections 2 and following, has nothing to do with the subject of prohibiting the physical desecration of the flag and, thus, is not germane under the rules of the House.

Mr. Speaker, I move to table the appeal.

Mr. Speaker, I make a point of order against the motion.

Mr. Speaker, this motion is also not germane under House rule XVI, clause 7, because it is one individual proposition attempting to amend another individual proposition.

The base constitutional amendment relates to flag desecration. The amendment proposed in the motion to recommit relates to the Old Age Survivors and Disability Trust Fund and is a separate proposition.

Mr. Speaker, I move to lay the appeal on the table.

Mr. Speaker, will the gentleman yield?

Mr. Speaker, the points of order that the gentleman from Wisconsin has been raising have been pursuant to House rules, and we should not be waiving the rules relative to the germaneness of motions to recommit.

Should the gentleman from Mississippi offer more nongermane motions to recommit, then I think it is incumbent upon me, as the manager of the bill, to raise a point of order, should the rules of the House be violated by the motion to recommit, as they have been in the past.

Mr. Speaker, on that I demand the yeas and nays.

Mr. Speaker, I will control the time.

Mr. Speaker, I yield such time as he may consume to the gentleman from Michigan (Mr. Conyers), the distinguished ranking member of the Committee on the Judiciary.

(Mr. CONYERS asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, today we are enduring the Republican rite of spring: A proposed amendment to the Bill of Rights to restrict what it calls flag desecration. Why spring? Because Members need to send out a press release extolling the need to protect the flag, as if the flag somehow needed Congress to protect it. It is easier than answering questions about the failure of this House to provide proper health care to our veterans, proper armor to save the lives of our troops, or proper support for their survivors.

Mr. Speaker, I have heard a number of speakers invoke the rescuers and heroes and first responders at Ground Zero on September 11 and the few weeks after.

Mr. Speaker, that is my district. I was there in the days after 9/11. I have seen the heroism and the self-sacrifice of the first responders. I have watched their betrayal by the Government of the United States, by the Federal and State and local governments which are not providing for their health care, which are not providing workers' comp when they cannot do their jobs because of World Trade Center health syndrome, which denies that they were present in the workers' comp proceedings after they get medals for rescuing people. That is the betrayal we should talk about. What they care about is being made whole, is having their health care taken care of and their lives restored, not this.

The flag is a symbol of our great Nation and the fundamental freedoms that have made this Nation great. If the flag needs protection at all, it needs protection from Members of Congress who value the symbol more than they value the freedoms the flag represents. Quite frankly, the crass political use of the flag to question the patriotism of those who value fundamental freedoms is a greater insult to those who died in the service of our Nation than is the burning of the flag.

I am certain we will hear speeches invoking the sacrifice of our troops in the field as a pretext for carving up the first amendment. We already have. That is a shameful exploitation of the patriotism and courage of these fine and courageous young people. It is the civic equivalent of violating the commandment against taking the Lord's name in vain.

If Members want to honor the sacrifice of our troops, protect the rights they fight for. Protect our civil liberties, and protect the rights of veterans. Playing games with the Constitution does not honor them.

People have rights in this country that supersede public opinion, even strongly held public opinion. That is why we have a Bill of Rights to protect

minorities from the majority. If we do not preserve those rights, then the flag will have been desecrated far beyond the capability of any idiot with a cigarette lighter.

Let there be no doubt that this amendment is aimed directly at ideas. Current Federal laws say that the preferred way to dispose of a tattered flag is to burn it, but there are those who would criminalize the same act of burning the flag if it was done to express political dissent.

Mr. Speaker, the fact of the matter is I have seen motion pictures, I have seen movies reflecting the War of 1812 in which the British burned our capital. I saw in those movies, actors playing British soldiers burning the flag. Did we send in the police to arrest the actors for this flag desecration? Of course not. We do not mind that because we know they do not mean it. That is to say, they are not burning the flag as an expression of disdain for our values, as an expression of their opinions on political issues of their disagreement with the administration or with the government in power. No, they are doing it as part of a play, play-acting; so the physical act does not mean anything, so we do not care.

But under this amendment, if someone were to do the same thing, burn the flag at the same time as he says, I disagree with the policy of whatever it is, that would be a criminal act. So what is really being made criminal? Not the act of burning the flag. What is really being made criminal is the act of burning the flag combined with the expression of a dissident, unpopular political opinion.

The act of burning the flag to dispose of it is a praiseworthy act. The act of burning the flag as part of a movie or part of a play, that is okay. I do not think anybody contemplates arresting the actors. Really, what we are getting at here is the core expression of first amendment protected ideas. We will arrest people who as part of expressing their opinion about something burn the flag. But if they burn the flag without expressing an opinion contrary to the government as part of a play or for some other reason, that will be okay. That should tell us what this amendment is about. That is why the Supreme Court said that the law was unconstitutional, because it does violate the first amendment.

The distinguished ranking member is quite correct. If we carve out this exception for the first amendment, if we make this the first time that we will limit rights protected by the Bill of Rights, it will be easier to do it in the future. Then the next amendment will come along and say that, well, if you say things that we think, that somebody at the moment thinks endangers American troops, you say the war, whatever war it is at the moment, is wrong, our President shouldn't have done it, whoever the President may be at that moment, our troops shouldn't be in wherever they are, that is endangering our troops, we will make that illegal. That will be easier to do. That is why this amendment is so dangerous.

How many Members of Congress, used car dealers, fast-food restaurants, and other seemingly legitimate individuals and enterprises have engaged in the act of using the flag or parts of the flag for advertising, an act which our unconstitutional law defines as flag desecration? This amendment would presumably make that law constitutional once more. If ratified, I think there are more than a few people who will have to redesign their campaign materials to stay out of jail, except, of course, that probably no one will arrest them for that violation of the law because they will not be seen to be using it for dissident political speech, unless they are running on an unpopular platform, then maybe they will be. Again, that is the danger of this amendment.

As if this assault on the Bill of Rights is not enough, the Judiciary Committee once again did not even bother holding a hearing on this very significant constitutional amendment. The Subcommittee on the Constitution did not bother to consider it, to debate it, or to vote on it. Now, I know that they will say, We've held hearings in previous Congresses. Yeah, and we have rejected this amendment in previous Congresses. And this is a new Congress. There are new Members. There is no excuse for doing something or attempting to do something so significant to start tearing up the Bill of Rights without even a hearing to hear opinions on it just because prior Congresses may have held hearings.

This cavalier attitude toward the Bill of Rights is offensive and revealing. Why discuss it? Why look into it? It's only the Constitution. We're only talking about the rights of a few malcontents for whom even opponents of this amendment have contempt.

And we do have contempt for people who would burn the flag. None of us think that those people are doing something praiseworthy. We all think it is absurd and wrong, but we think their right to be wrong has to be protected. That is what America is all about. By the way, where is this epidemic of flag burning? I do not recall seeing anybody burning the flag in I do not know how many years. What is the danger we are legislating against? People have died for this great Nation and the rights which this flag so proudly represent. We are a shining beacon to the world because we allow dissent, even when that dissent is offensive or despicable. Let us not cease to be a shining beacon on the hill. Let us not diminish our liberty. Let us not destroy the way of life for which our troops have made the ultimate sacrifice.

Mr. Speaker, I reserve the balance of my time.

Mr. Speaker, I yield 6 minutes to the gentleman from Virginia (Mr. Scott), a distinguished member of the Committee on the Judiciary.

Mr. Speaker, I yield myself such time as I may consume.

So, in other words, if one desecrates a flag to make a nice point, that is a good context. If they desecrate it to make an unpopular point, that should be jailable. I thank the gentleman from Indiana (Mr. Sodrel) for making my point.

Mr. Speaker, I yield 5 minutes to the distinguished gentlewoman from California (Ms. Zoe Lofgren), member of the Committee on the Judiciary.

Mr. Speaker, I yield 2 minutes to the gentleman from Texas (Mr. Gene Green).

Mr. Speaker, I yield 3 minutes to the distinguished gentleman from Texas (Mr. Paul).

(Mr. PAUL asked and was given permission to revise and extend his remarks.)

Mr. Speaker, I yield such time as he may consume to the distinguished gentleman from Arkansas (Mr. Snyder).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I want to begin by reading excerpts of an article written in the ``Retired Officer,'' a veterans magazine, by a Major James Warner, who was a POW in Vietnam for 6 years. He writes as follows: ``In March of 1973, when we were released from a prisoner-of- war camp in North Vietnam, we were flown to Clark Air Base in the Philippines.

``As I stepped out of the aircraft, I looked up and saw the flag. I caught my breath then as tears filled my eyes. I saluted it. I never loved my country more than at that moment. Although I had received a Silver Star medal, and two Purple Hearts, they were nothing compared to the gratitude that I felt then for having been allowed to serve the cause of freedom.

``Because the mere sight of the flag meant so much to me when I saw it for the first time after 5\1/2\ years, it hurts me to see other Americans willfully desecrate it. It hurts to see the flag burned, but I part company with those who want to punish the flag burners. Let me explain myself.''

He then goes on to talk about his experience in the POW camp. He says, ``I remember one interrogation where I was shown a photograph of some Americans protesting the war by burning a flag. See, the officer said, people in your country protest against your cause. That proves you are wrong.

``No, I said, that proves I am right. In my country we are not afraid of freedom, even if it means that people disagree with us. The officer was on his feet in an instant, his face purple with rage. He smashed his fist onto the table and screamed at me to shut up. While he was ranting, I was astonished to see pain compounded by fear in his eyes. I have never forgotten that look, nor have I forgotten the satisfaction I felt at using his tool, the picture of the burning flag, against him.

``We do not need,'' he continues, ``to amend the Constitution in order to punish those who burn our flag. They burn the flag because they hate America and they are afraid of freedom. What better way to hurt them than with a subversive idea of freedom? Do not be afraid of freedom, it is the best weapon we have.''

This is, as I said, from Major James Warner, who was a POW in Vietnam for 6 years who understands freedom, and therefore opposes this amendment.

Mr. Speaker, I yield 2 minutes to the gentleman from Connecticut (Mr. Shays).

Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the fact of the matter is, there have been thousands of amendments introduced, thousands of proposed amendments introduced to the Constitution of the United States. Only 17 have been adopted since 1791 after the Bill of Rights.

Amendments were proposed after most unpopular Supreme Court decisions. After the one-man, one-vote decision in 1960, whatever it was, where they said you had to reapportion based on population, there were amendments introduced. Amendments have been introduced after every unpopular decision of the Supreme Court.

It is deliberately difficult to amend the Constitution because the framers of the Constitution were afraid of transient majorities. They were afraid of emotion, and they deliberately wanted it to be difficult to amend the Constitution so it would not be amended very often, and only under dire necessity. What is the dire necessity here?

What is the dire necessity, that in the last 20 years, I heard someone say 119 people have burned the flag. Well, a lot more than 119 people have burned the flag. Most, however, have burned the flag to dispose of it, which is the approved method of disposing of it.

I have heard the gentleman from Florida (Mr. Stearns) say, and others say, this has nothing to do with free speech. People can say anything they want. But it is burning the flag. But the fact is, it is very much free speech.

That is why the Supreme Court decided as it did, because burning the flag for a proper purpose, that is, to say an approved purpose, to destroy it, to destroy a tattered flag, is approved. But burning the flag to express an unpopular viewpoint, we do not agree with the administration in power about whatever, that would be made a crime.

So what is the real essence of the crime? Burning the flag in connection with unpopular speech. If you burn it in connection with popular speech, we respect the flag and we dispose of this, or this connection with popular speech because you are an actor playing the British burning Washington in 1814, that is okay. So this gets at the heart of free speech.

Now, it may not be all that important right now, and it is not. We do not see any epidemic of people burning flags. We have no great emotional issue at the moment that have people marching in the streets; but as the gentleman from Arkansas (Mr. Snyder) pointed out, at times in our history we have, and at times in our history people have been persecuted and free speech has been violated. We should not repeat that.

We should not make it easier at times of emotion in the future on issues we cannot now foresee for unpopular minorities to be bullied. We should not make it easier for unpopular minorities in the future to have their free speech trampled or to give weapons to a future government with which to trample free speech.

We all love the flag. No one is divided on that in this Chamber. But those of us who understand, I think, the meaning of liberty and the meaning of what this country stands for, perhaps in a way, I would want to say better than others, but that would be a little arrogant, but to understand that as we do, understand that the real meaning of this country is to permit free speech, to magnify free speech, to magnify free speech of those we do not agree with, of those we find obnoxious. And what this amendment does is to sacrifice that.

The cloth of the flag is not what we revere. What we revere is the idea of the flag and the Republic for which it stands. That idea is threatened by this amendment, not protected by it; and that is why it should not be approved.

Mr. Speaker, I yield back the balance of my time.

Mr. Speaker, I rise in strong opposition to this resolution. The process may well be legal, but it is unwise.

The problem is minimal. This is more like a solution in search of a problem. We just do not need to amend the Constitution for so little a problem that we face in this regard. We are just looking for another job for the BATF to enforce this type of legislation.

It was stated earlier that this is the only recourse we have since the Supreme Court ruled the Texas law unconstitutional. That is not true. There are other alternatives.

One merely would be to use State law. There are a lot of State laws, such as laws against arson, disturbing the peace, theft, inciting riots, trespassing. We could deal with all of the flag desecration with these laws. But there is another solution that our side has used and pretends to want to use on numerous occasions, and that is to get rid of the jurisdiction from the Federal courts. We did it on the marriage issue; we can do it right here.

So to say this is the only solution is incorrect. It is incorrect. And besides, a solution like that would go quickly, pass the House by a majority vote, pass the Senate by a majority vote, send it to the President. The Schiavo legislation was expedited and passed quickly. Why not do it with the flag? It is a solution, and we should pay attention to it.

Desecration is reserved for religious symbols. To me, why this is scary is because the flag is a symbol today of the State. Why is it, our side never seems to answer this question when we bring it up, why is it that we have the Red Chinese, Cuba, North Korea, and Saddam Hussein who support the position that you severely punished those who burn a flag? No, they just gloss over this. They gloss over it. Is it not rather ironic today that we have troops dying in Iraq, ``spreading freedom'' and, yet, we are here trying to pass laws similar to what Saddam Hussein had with regard to the flag? I just do not see where that makes a lot of sense.

Mr. Speaker, a question I would like to ask the proponents of this legislation is this: What if some military officials arrived at a home to report to the family that their son had just been killed in Iraq, and the mother is totally overwhelmed by grief which quickly turns to anger. She grabs a flag and she burns it? What is the proper punishment for this woman who is grieved, who acts out in this manner? We say, well, these are special circumstances, we will excuse her for that; or no, she has to be punished, she burned a flag because she was making a political statement. That is the question that has to be answered. What is the proper punishment for a woman like that? I would say it is very difficult to mete out any punishment whatsoever.

We do not need a new amendment to the Constitution to take care of a problem that does not exist.

Another point: The real problem that exists rountinely on the House floor is the daily trashing of the Court by totally ignoring Act I Sec. 8. We should spend a lot more time following the Rule of Law, as defined by our oath of office, and a lot less on unnecessary constitutional amendments that expands the role of the Federal Government while undermining that extension of the States.

Mr. Speaker, let me summarize my views on this proposed amendment. I rise in opposition to this amendment. I have myself served 5 years in the military, and I have great respect for the symbol of our freedom. I salute the flag, and I pledge to the flag. I also support overriding the Supreme Court case that overturned state laws prohibiting flag burning. Under the Constitutional principle of federalism, questions such as whether or not Texas should prohibit flag burning are strictly up to the people of Texas, not the United States Supreme Court. Thus, if this amendment simply restored the state's authority to ban flag burning, I would enthusiastically support it.

However, I cannot support an amendment to give Congress new power to prohibit flag burning. I served my country to protect our freedoms and to protect our Constitution. I believe very sincerely that today we are undermining to some degree that freedom that we have had all these many years.

Mr. Speaker, we have some misfits who on occasion burn the flag. We all despise this behavior, but the offensive conduct of a few does not justify making an exception to the First Amendment protections of political speech the majority finds offensive. According to the pro- flag amendment Citizens Flag Alliance, there were only three incidents of flag desecration in 2004 and there have only been two acts of desecration thus far in 2005, and the majority of those cases involved vandalism or some other activity that is already punishable by local law enforcement!

Let me emphasize how the First Amendment is written, ``Congress shall make no law.'' That was the spirit of our nation at that time: ``Congress shall make no laws.''

Unfortunately, Congress has long since disregarded the original intent of the Founders and has written a lot of laws regulating private property and private conduct. But I would ask my colleagues to remember that every time we write a law to control private behavior, we imply that somebody has to arrive with a gun, because if you desecrate the flag, you have to punish that person. So how do you do that? You send an agent of the government, perhaps an employee of the Bureau of Alcohol, Tobacco and Flags, to arrest him. This is in many ways patriotism with a gun--if your actions do not fit the official definition of a ``patriot,'' we will send somebody to arrest you.

Fortunately, Congress has modals of flag desecration laws. For example, Sadam Hussein made desecration of the Iraq flag a criminal offense punishable by up to 10 years in prison.

It is assumed that many in the military support this amendment, but in fact there are veterans who have been great heroes in war on both sides of this issue. I would like to quote a past national commander of the American Legion, Keith Kreul. He said:

Our Nation was not founded on devotion to symbolic idols,

but on principles, beliefs and ideals expressed in the

Constitution and its Bill of Rights. American veterans who

have protected our banner in battle have not done so to

protect a golden calf. Instead, they carried the banner

forward with reverence for what it represents, our beliefs

and freedom for all. Therein lies the beauty of our flag. A

patriot cannot be created by legislation.

Secretary of State, former Chairman of the Joint Chiefs, and two-time winner of the Presidential Medal of Freedom Colin Powell has also expressed opposition to amending the Constitution in this manner: ``I would not amend that great shield of democracy to hammer out a few miscreants. The flag will be flying proudly long after they have slunk away.''

Mr. Speaker, this amendment will not even reach the majority of cases of flag burning. When we see flag burning on television, it is usually not American citizens, but foreigners who have strong objections to what we do overseas, (burning the flag.) This is what I see on television and it is the conduct that most angers me.

One of the very first laws that Red China passed upon assuming control of Hong Kong was to make flag burning illegal. Since that time, they have prosecuted some individuals for flag burning. Our State Department keeps records of how often the Red Chinese prosecute people for burning the Chinese flag, as it considers those prosecutions an example of how the Red Chinese violate human rights. Those violations are used against Red China in the argument that they should not have most-favored-nation status. There is just a bit of hypocrisy among those Members who claim this amendment does not interfere with fundamental liberties, yet are critical of Red China for punishing those who burn the Chinese flag.

Mr. Speaker, this is ultimately an attack on private property. Freedom of speech and freedom of expression depend on property. We do not have freedom of expression of our religion in other people's churches; it is honored and respected because we respect the ownership of the property. The property conveys the right of free expression, as a newspaper would or a radio station. Once Congress limits property rights, for any cause, no matter how noble, it limits freedom.

Some claim that this is not an issue of private property rights because the flag belongs to the country. The flag belongs to everybody. But if you say that, you are a collectivist. That means you believe everybody owns everything. So why do American citizens have to spend money to obtain, and maintain, a flag if the flag is communally owned? If your neighbor, or the Federal Government, owns a flag, even without this amendment you do not have the right to go and burn that flag. If you are causing civil disturbances, you are liable for your conduct under state and local laws. But this whole idea that there could be a collective ownership of the flag is erroneous.

Finally, Mr. Speaker, I wish to point out that by using the word ``desecration,'' which is traditionally reserved for religious symbols, the authors of this amendment are placing the symbol of the state on the same plane as the symbol of the church. The practical effect of this is to either lower religious symbols to the level of the secular state, or raise the state symbol to the status of a holy icon. Perhaps this amendment harkens back to the time when the state was seen as interchangeable with the church. In any case, those who believe we have ``no king but Christ'' should be troubled by this amendment.

We must be interested in the spirit of our Constitution. We must be interested in the principles of liberty. I therefore urge my colleagues to oppose this amendment. Instead, my colleagues should work to restore the rights of the individual states to ban flag burning, free from unconstitutional interference by the Supreme Court.

Mr. Speaker, I thank the gentleman for yielding me this time. I think it is important to put this debate in context because it occurs to me that every time we consider this resolution, we end up cutting veterans health care. So let us just see what we are doing this year on the health care budget for veterans. The Republican budget cuts veterans health care programs by more than $13.5 billion over the next 5 years compared to what would be needed just to keep up with inflation. The President even proposed a $15 billion cut and copays for a significant number of our veterans.

When the sponsor challenges us to ask wounded veterans in VA hospitals what they want us to do, I suspect that they would not be asking us to cut veterans health care at the same time we debate this resolution.

Furthermore, Mr. Speaker, just before we went on Memorial Day break and gave speeches just a few weeks ago, colleagues voted down a measure that would have offered TRICARE health coverage to National Guard members and Reservists. Reserve components make up 50 percent of our forces in Iraq and studies show that 20 percent have no health insurance. For younger Reservists it is as high as 40 percent have no health insurance coverage. How can we ask these young men and women to serve on the front line and not even provide for them the basic necessity of health care?

And so, Mr. Speaker, 25 million American veterans deserve respect and dignity and they deserve more than the debate on this constitutional amendment. We should be providing health care for our veterans, not this resolution.

Mr. Speaker, everyone here respects the flag. The question before us is not whether we respect the flag, but whether or not we ought to use the criminal code to prevent those who disagree with us to express their views. The Supreme Court has frequently considered restrictions on speech that are permissible by our government. For example, under the first amendment with respect to speech, speech may be regulated by time, place and manner, but not regulated by content.

There are, of course, exceptions. Speech may be restricted if it creates an imminent threat of violence or threatens safety or expresses a patently offensive message that has no redeeming social value, but we cannot restrict by content otherwise. The distinction: you can restrict by time, place and manner but not content.

So you can restrict the particulars of a march or a demonstration by what time it is held or where it is held or how loud the demonstration can be, but you cannot restrict what people are marching or demonstrating about. You cannot ban a particular march or demonstration just because you disagree with the message unless you decide to ban all marches. You cannot allow one political party to have a demonstration, but not the other. You cannot have a pro-war demonstration and then try to restrict an anti-war demonstration.

Speech protected by the Constitution we have to recognize will always be unpopular. Popular speech does not need protection. It is only that speech that provokes the local sheriff into wanting to arrest you for what you said that needs protection. Of course, speech protected by the first amendment will always be unpopular.

Some have referred to the underlying resolution as the anti-flag burning amendment, and they speak about the necessity of keeping people from burning flags. In reality, the only place you ever see a flag burned is in compliance with the Federal code at flag ceremonies disposing of a worn-out flag. Ask any Boy Scout or American Legion member how to dispose of a worn-out flag and they will tell you that the procedure is to burn the flag at a respectful ceremony.

In fact, the only time I have seen a flag burned is at one of these ceremonies. So the proposed constitutional amendment is all about expression and all about prohibiting expression in violation of the first amendment principles. In fact, the amendment does not even use the term ``burning.'' It uses the term ``flag desecration.'' And by using the word ``desecration,'' we are giving government officials the power to decide that one can burn the flag if they are saying something nice and respectful, but they are a criminal if they burn this flag while they are saying something offensive or insulting. This is an absurd distinction and is a direct contravention of the whole purpose of the first amendment, especially when the real impact of the legislation will be to have political protesters arrested because they disagree and express that disagreement of government policy.

Mr. Speaker, in addition to the violation of the spirit of the Bill of Rights, this amendment has practical problems. For example, what is a flag? Can one desecrate a picture of a flag? Can one desecrate a flag with the wrong number of stripes?

Mr. Speaker, during the Vietnam War, laws were passed prohibiting draft cards from being burned, and protesters with great flourish would say that they were burning their draft cards and offend everybody, but then nobody would know whether it was a draft card or just a piece of paper. And what happens if one desecrates their own flag in private? Are they subject to criminal prosecution if somebody finds out?

Mr. Speaker, I feel compelled to comment on suggestions that stealing and destroying somebody's personal property is protected if that property happens to be a flag. That is wrong. It is still theft and personal property. The other examples, there are other criminal codes that people can be prosecuted on. What this legislation is aimed at is criminalizing political speech, and we should not criminalize political speech just because we disagree with it, just because we have the votes.

So, Mr. Speaker, I hope that we would defeat this resolution, and I urge my colleagues to oppose the resolution.

Mr. Speaker, let me just begin by saying our flag does not need protection from an occasional protester, we call them miscreants I think, who cannot see how ridiculous it is to try to protest by destroying the symbol of his right to protest. If he cannot see how ridiculous that is, obviously we do not need much protection from him.

Contrary to what has been suggested on the floor, the underlying amendment does not regulate conduct. Without the Watt amendment, it clearly regulates message.

Now, as the gentleman from North Carolina, sponsor of the amendment, points out, the underlying amendment does not repeal the first amendment. Even if we adopt this constitutional amendment, the first amendment will still be there, and so the amendment is, in fact, redundant, but it makes it clear and reminds people that it is still there.

What he seeks to clarify is whether or not it is indeed the message that is being criminalized rather than the conduct, whether or not those who support government policy, for example, and burn a flag without offending anybody, apparently they will be okay. But if you are a war protester who burns a flag, you can be arrested, and if you are a veteran, so disgusted with veterans health care, and burn the flag in protest, are we making him a criminal? Or if you are a member of a fringe political organization who burns his own flag on his own property, in private, can they be arrested if somebody finds out?

The question is whether or not we are criminalizing the message or the conduct. So the Watt amendment makes it clear that we are still protecting freedom of speech. The message, that will be clear, that we if we do not support the Watt amendment we just ought to acknowledge it is indeed the message, not conduct, which is the target of the underlying amendment.