A joint resolution proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States.

Mr. President, I will respond, but first I ask unanimous consent to allow the distinguished Senator from Alabama to speak, and then allow me to go next.

Thank you, Mr. President.

Mr. President, this amendment is a bipartisan amendment. It is overwhelmingly bipartisan. We have always gotten over 60 votes. The House of Representatives passes it overwhelmingly and gets the requisite two-thirds vote every time. It has always been stopped here in the Senate.

Bringing it up at this time is certainly not an election-year ploy, as we have Democrats and Republicans who feel very deeply about this issue. It is bipartisan. The last time we brought it up was in the year 2000. If I had my way, we would have brought it up every one of those intervening years so the American people could really realize what is involved here.

So today we begin the debate on the flag protection amendment. This is an important debate. This is a constitutional amendment. It ought to be difficult to pass any constitutional amendment, and they truly make it difficult, requiring a two-thirds vote of both bodies. Assuming we get those votes and it passes both bodies, it has to be submitted to the States, and 38 States would have to ratify it, at least 38, in other words, three-quarters of the States.

I thank my colleagues on both sides of the aisle for supporting this effort. I especially thank my colleague, the chairman of the Judiciary Committee, Senator Specter, for working so hard to see this amendment through the committee. I thank my dear friend from Alabama who just spoke because, in his own cogent, very clear spoken way, he has made it very clear this is not some inconsequential, inconsiderate, partisan thing that is going on here. I also thank the majority leader, Senator Frist, for bringing it to the floor.

Like I say, this is an important debate. A lot depends on this debate. In fact, I would say it is a critical debate. Should this amendment pass, we will restore--that is a very important word--the power of the people over their own Constitution. We will make it clear that in America it is the people, not the judges, who are sovereign.

This is a debate worth having. There has been a lot of misunderstanding about this amendment. I believe even the distinguished ranking member on the committee has misconstrued this amendment in his remarks here today. This is what the amendment says. It is simple. It has nothing to do with free speech. The amendment says:

The Congress shall have power to prohibit the physical

desecration of the flag of the United States.

Let's read that again. It does not ban anything. It says:

The Congress shall have power to prohibit the physical

desecration of the flag of the United States.

This body and the other body will have the power. The other body has already voted it out of that body by a two-thirds vote. Some say we are only one vote short of having 67 votes. Some want to make this a partisan debate. It is not. Some want to make it an election-year debate. It is not. This is a bipartisan debate over whether we are going to stand up and restore the Constitution to what it was before five unelected Justices on the U.S. Supreme Court--to four who totally disagreed with them--decided to change the Constitution. Those who argue that this is a change of the Bill of Rights have failed to recognize there are millions in this country--the vast majority--who differ with those five unelected Justices. And there were four with an opinion, written by arguably one of the most liberal Justices on the court, Justice Stevens, saying that desecrating the flag is not free speech but offensive conduct.

But even if you want to make that argument, it does not belong here in the context of this debate because what we are arguing is whether we can restore the Constitution to what it was before five unelected jurists, Justices, on the Supreme Court changed it.

The Congress shall have power to prohibit the physical

desecration of the flag of the United States.

I have heard Senators on this floor criticize the administration and other administrations on both sides of the aisle saying that they have usurped the powers of the Congress of the United States. Yet some of them who are voting against this amendment turn around and fail to stop the usurpation of powers by the Supreme Court of the United States in a 5 to 4 decision.

Well, don't miss the point here.

The Congress shall have power to prohibit the physical

desecration of the flag of the United States.

That is what this amendment says. It is a simple statement of the power of the people and of their Representatives in Congress. So all the high-flown talk about the Bill of Rights and this is going to be the first time the Bill of Rights will be overturned--come on, the Bill of Rights was overturned when five unelected jurists changed it and changed the Constitution. Now we will get it back to the people.

This amendment does not ban anything. It does not amend the first amendment. It does not prohibit speech. What it does is simple. It restores the power of the people's Representatives to protect the flag from acts of physical desecration. That is it. That is it. It is that simple.

The Congress shall have power to prohibit the physical

desecration of the flag of the United States.

In the United States, we have government by the people. The Declaration of Independence makes it clear that in this country--for that matter, in any just political community--the people are sovereign.

Sometimes we need to be reminded of this powerful truth. This is how Thomas Jefferson explained what he called ``the common sense of the matter.''

We hold these Truths to be self-evident, that all Men are

created equal, that they are endowed by their Creator with

certain

unalienable Rights, that among these are Life, Liberty, and

the Pursuit of Happiness--That to secure these Rights,

Governments are instituted among Men--

Now, get this last part:

deriving their just Powers from the Consent of the Governed.

It is the first principle of the American founding, and it is one that the American people still hold true today. Government exists because of the people, and it only exists with their consent, meaning our consent.

The Constitution affirmed this when it began with ``We the People.'' The people wrote the Constitution at the Convention. The people created the Congress and the courts. The people ratified the Constitution. They gave it life. And the people ratified the first amendment.

Yet, for too long, some unelected judges have mistakenly concluded that it is the courts that have exclusive dominion over the Constitution. This is a chance for us to say to the Supreme Court: We are not going to let you intermeddle in the affairs of the people themselves with regard to the flag of the United States.

For too long, some unelected judges have mistakenly concluded that it is the courts that have exclusive dominion over the Constitution.

The Constitution began with ``We the People.'' The people wrote the Constitution at the Constitutional Convention. The people created the Congress and the courts. The people ratified the Constitution and gave it life. And the people ratified the first amendment.

Yet the courts seem to say they are the only ones who have authority over the Constitution. This was certainly the case in 1989, when a severely divided Court reversed 200 years of American jurisprudence and overturned the considered judgment of the American people in almost every State.

For generations, the American people provided protections for their beloved symbol, the flag.

On June 20, 1989, 48 States and the District of Columbia had statutes that protected the flag from physical desecration.

On June 21, 1989, all of those statutes suddenly became unconstitutional--all of the people's statutes, all of that work by all of these legislatures and the District of Columbia. All of them were ruled unconstitutional by five unelected Justices who were contested by four Justices on the Court.

Now, how did this come to pass? One vote on the Supreme Court switched, one vote. That is it. One vote and the will of the people in virtually every State in the Union was overturned--in nearly every State. One vote, one person--five people.

For many years, the Court well understood the obvious and compelling interest of political communities in protecting the American flag from desecration. In 1907, Justice Harlan wrote for the Supreme Court in Halter v. Nebraska. That decision reviewed a Nebraskan statute protecting the flag from physical misuse.

This was Justice Harlan's--one of the all-time greatest Justices on the Supreme Court--conclusion:

It is not remarkable that the American people, acting

through the legislative branch of the Government, early in

their history, prescribed a flag as symbolical of the

existence and sovereignty of the Nation . . . [L]ove both of

the common country and of the state will diminish in

proportion as respect for the flag is weakened. Therefore, a

state will be wanting in care for the well-being of its

people if it ignores the fact that they regard the flag as a

symbol of their country's power and prestige, and will be

impatient if any disrespect is shown towards it.

In short, there was a clear interest in providing protection for the American flag, recognized by one of the greatest Justices in the history of the Supreme Court.

Now, following this holding in the Court, the National Conference of Commissioners on Uniform State Laws approved the Uniform Flag Act in 1917. Section 3 of that act provided that:

No person shall publicly mutilate, deface, defile, trample

upon, or by any word or act cast contempt upon any such flag,

standard, color, ensign, or shield.

Now, many States used this Federal statute as a model for their State statutes or to supplement existing statutes.

There is no doubt that desecrating a flag is meant to express something. But as the late Chief Justice Rehnquist understood, that expression is more akin to an ``inarticulate grunt'' than a serious public statement when they desecrate the flag. The States concurred when they did their own balancing of the interests of the political community in protecting the flag with the interest of the individual in expressing himself.

The Court agreed that not all expressive conduct could simply be labeled speech and given full first amendment protection. As the Supreme Court explained in United States v. O'Brien:

[W]e cannot accept the view that an apparently limitless

variety of conduct can be labeled ``speech'' whenever the

person engaging in the conduct intends to express an idea.

In instances where expressive conduct, not speech, is at issue, the Court must balance the interests of the community in prohibiting this conduct with the interests of the person who wishes to express himself or herself. With regard to flag burning, the Court's approach was measured. In Smith v. Goguen, the Court overturned a flag desecration conviction in Massachusetts, concluding that the statute which punished words and acts of desecration was void for vagrants. The Court added, however, that:

nothing prevents a legislature from defining with

substantial specificity what constitutes forbidden treatment

of United States flags.

This is the Supreme Court. The Court pointed to the Federal flag protection statute, one which prohibited only physical desecration rather than words, as an example of a constitutionally permissible statute. And so it was, until five unelected Jurists changed it-- actually, until one vote changed it, one vote combined with the four who had always voted against the flag.

The Court and the people were in agreement. Not all expressive conduct can receive first amendment protection. The Government's interest in protecting the American flag from physical desecration was a real one. But be that as it may, we could argue right now about whether this is conduct or whether it is speech. The fact is, we are not talking about free speech. We are talking about restoring the Constitution to what it was before five unelected judges or Justices on the Supreme Court changed it. And it really came down to one changed vote on the Court because the Court had always upheld amendments that protected the flag from acts of physical desecration.

The flag is a unique symbol of our nationhood that demands protection. The American people do not share a common religion or common political beliefs. We do not share a common ethnic heritage. But there are a few public symbols we do share as people. The American flag is a unique representation of our remarkable union. Its 13 stripes represent our origins as a nation, and its 50 stars, separate but unified on a field of blue, represent what we have become. From a small outpost of the Colonies fighting for freedom, we have become a beacon of liberty to the whole world.

For years, interest in protecting this symbol was deemed strong and real enough to rebut serious constitutional challenges. What changed? Why do the American people no longer have the right to protect the flag from acts of physical desecration? Why can't the Congress do that? One vote switched and went with the other four, and all of these rights were gone. So to those who say this is a denigration of the first amendment, the first amendment was denigrated when five unelected Justices took the power away from the people.

Prior to 1989, 48 States protected the flag, and the other two basically stood for protecting the flag, and the District of Columbia. I am not making this up. On June 20, 1989, nearly every State had laws protecting the flag from physical desecration. All those States rights, all the people's rights, were wiped out when one person changed his vote on the Supreme Court. One day later, after June 20, 1989, all of these State laws were unconstitutional. All that changed is the Supreme Court determined that it would disregard the beliefs of the American people and their representatives in Congress and in the States.

When the Supreme Court had the opportunity to execute its balancing test in Texas v. Johnson, balancing the interests of the people and prohibiting certain conduct with the individual's

interest in expressing himself in a particular manner, the Justices put their finger on the scale. They rejected as insufficient the States' interests, all of these States and their interests, one supported by the people in protecting the flag. They did not do so through a unanimous opinion. The Justices were severely divided, issuing a 5-to-4 decision. The dissent of Justice John Paul Stevens, arguably one of the most liberal Justices in history, was compelling. He dissented from that five-person majority case. He spoke for the opinion that the Court had arbitrarily abandoned. Here is what Justice Stevens said:

The Court . . . is quite wrong in blandly asserting that

respondent ``was prosecuted for his expression of

dissatisfaction with the policies of this country, expression

situated at the core of our First Amendment values.''

Respondent was prosecuted because of the method he chose to

express his dissatisfaction with those policies. Had he

chosen to spray-paint--or perhaps convey with a motion

picture projector--his message of dissatisfaction on the

facade of the Lincoln Memorial, there would be no question

about the power of the Government to prohibit his means of

expression. The prohibition would be supported by the

legitimate interest in preserving the quality of an important

national asset. Though the asset at stake in this case is

intangible, given its unique value, the same interest

supports a prohibition on the desecration of the American

flag.

That is Justice Stevens, who wrote the opinion for the Court and who many would arguably say may be the most liberal Justice on the Court. The American people agreed: the Court got this one wrong. They got it very wrong. So Congress acted immediately. We believed that Congress did have the power to protect the flag. For well over 100 years, the Court had upheld State and Federal protection measures.

On July 18, 1989, two separate measures were introduced in the Senate. Former Senators Robert Dole, Alan Dixon, Strom Thurmond, and Howell Heflin introduced S.J. Res. 180, which would restore the power to protect the flag to the States and affirm the existing power of Congress to do so. On the same day, Senators Joseph Biden, William Roth, and William Cohen introduced the Flag Protection Act.

While the amendment would have merely restored and confirmed the power of the people's representatives to protect the flag, as this resolution does, this statute which was filed by Senators Biden, Roth, and Cohen would have actually codified that legal protection.

Ultimately, the Senate acted on the bill authored by my colleague from Delaware, Senator Biden. As chairman of the Judiciary Committee, he was committed to resolving this issue. He held four hearings with 20 hours of testimony and 26 witnesses. I was there. After consulting with many experts, he was convinced that his bill would pass constitutional muster. It was a great bill, consistent with the desires of the American people. It provided extremely broad protection for our American flag. This is what became law. This is Senator Biden's language and others of us who supported it:

[W]hoever knowingly mutilates, defaces, physically defiles,

burns, maintains on the floor or ground or tramples upon any

flag of the United States shall be fined under this Title or

imprisoned for not more than one year, or both.

This bill passed by an overwhelmingly bipartisan vote. There are not many things which go through the Senate on a vote of 91 to 9, but the determination to pass a constitutional statute to protect the flag from physical desecration was one of them. Going back and looking at that rollcall vote, we should be proud of our actions. Current Senators, including my colleagues on the Judiciary Committee, Senators Biden and Herb Kohl, supported the bill. So too did my colleague from Kentucky, Senator McConnell, who has since been elected majority whip. A number of other Senators who are no longer here supported this as well, including former Democratic leader Tom Daschle. It was a good bill. But the Supreme Court had other ideas.

On June 11, 1990, the Supreme Court struck down this overwhelmingly congressionally approved statute in United States v. Eichman. Again, this Court was severely divided along familiar lines. So what now? What course of action is available to Congress? They have made it clear you can't do this by statute. They made it abundantly clear. The Court had given us its opinion. It said that statutory protection of the American flag was not content-neutral and therefore violated core constitutional rights to expressive conduct. An amendment really is the only way we can solve this problem. So Congress began to focus its attention on a constitutional amendment that would restore the power of the people to protect the flag from acts of physical desecration.

Those who supported this amendment believed that the Court got this one wrong, badly wrong, and it was up to the people to correct these decisions. A constitutional amendment is really the only way to do it. I am not the only one who has thought so. Some of the most compelling statements on behalf of an amendment have come from my colleague from North Dakota, Senator Conrad. In the past, he argued forcefully for an amendment to fix this problem:

Because I believe that the flag should have legal

protection, I supported statutes last year and today to

protect the American flag. But these attempts have failed.

And now we are left with no other choice if we believe that

the flag deserves protection.

Senator Conrad went on to say:

We should let the States decide this matter. If we fail to

adopt an amendment today, we will deny the States the right

to express their views on this matter.

That was a statement made in 1990.

By approving the constitutional amendment before us, we

will foster a healthy debate in this country about the Bill

of Rights, the freedoms we enjoy, our constitutional

guarantees, and how we can legally and legitimately protect

the flag. It is for these reasons that I will support a

constitutional amendment in this body and let the people

decide this important matter.

I agree with that. That statement was made on June 26, 1990. He was right. This is the way to create a debate all over the country that would be a debate on virtue and values. I couldn't have said it better myself than the way Senator Conrad said it in 1990. An amendment really is the only way.

In a recent letter on this subject, Stephen Presser, professor of legal history at Northwestern University School of Law, explained that an amendment was and remains our only option. He said:

We were told by proponents of a statute to correct the

Court's error in 1989 that they could draft one that would

survive Constitutional challenge. I testified at a hearing

before the Judiciary Committee at that time that it could not

be done, and, sure enough, in 1990, the Supreme Court ruled

in U.S. v. Eichman that the statute (which scholars such as

Larry Tribe, for example, told us would be deemed

constitutional) was unconstitutional. It is significant that

Professor Tribe, along with his Harvard colleague Richard

Parker have now clearly taken the position that no flag

protection statute can pass Constitutional muster. They are

correct: any statute would be deemed by the Court to be the

government's unconstitutional favoring of one form of speech

over another, and would thus be deemed to be unconstitutional

content, discrimination with regard to speech.

A constitutional amendment is the only way. The alternative is to do nothing. Congress believed that it had the power to protect the flag; the Court disagreed.

I listen to many of my colleagues routinely complain that other branches are usurping the powers of Congress. I have heard that through my whole 30 years in the Congress. They are always complaining about the executive branch usurping the powers of Congress. The judicial branch is usurping the powers of Congress. Here we have a chance to restore those powers:

The Congress shall have the power to prohibit the physical

desecration of the flag of the United States.

What does that ban? It doesn't ban a thing. All it says is that we are going to restore the power the Congress had before five unelected Jurists said we didn't have the power.

When we passed the Flag Protection Act in 1989, we believed we had the power to pass that bill. The Court had different ideas. They overturned this overwhelmingly bipartisan legislation. We have an overwhelmingly bipartisan constitutional amendment here. It isn't partisan. It is bipartisan. We will have people come on the Senate floor and try to make this a partisan issue, which is all too frequent around here, and ignore the fact that a lot of colleagues on both sides of the floor, an overwhelming number, are in favor of this amendment.

If we want a statute to do this, we need to restore our constitutional authority to pass it--the alternative to

our constitutional amendment, a simple amendment, restoring the power to the Congress. That is all it does. If you listen to the media, they act like it is going to be a ban. It would not be a ban. If we can pass this amendment and have it ratified by 38 States, I have no doubt there will be a constitutional debate on the floor as to what language will protect our beloved flag. It would take at least 60 votes on the floor of the Senate to pass any language because of our filibuster rule, so it is going to take a supermajority no matter what. We are not about that right now. That has nothing to do with this amendment, except it would be inevitable. What has to do with it is restoring the power to the Congress which was taken by five unelected Justices on the Supreme Court. If we want this type of statute, it is important to restore our constitutional authority to pass it.

As I said, the alternative to this amendment is to do absolutely nothing and acquiesce in the usurpation of our institutional power by another branch of Government. By doing nothing, we accede, through our inaction, to a decision by five unelected Justices who took the power from an American people over an important cultural issue.

Abraham Lincoln addressed this issue before becoming President. What do you do when the Supreme Court gets it wrong? This is what Lincoln taught us:

The candidate citizen must confess that if the policy of

the Government upon vital questions affecting the whole

people is to be irrevocably fixed by decisions of the Supreme

Court, the instant they are made in ordinary litigation

between parties in personal actions, the people will have

ceased to be their own rulers, having to that extent

practically resigned their Government into the hands of that

eminent tribunal.

Well, that is what Lincoln had to say. Are we going to just continue to allow five unelected Jurists to determine what the vast majority of the American people believe is right or are we going to continue to determine that they are taking away the power that the Congress has always had? We should restore that power? That is what this amendment does.

The answer in a democracy is that you let the people decide, especially on these sensitive, tough issues. I routinely hear some of my liberal colleagues who have recently re-minted themselves as progressives, complain that we don't listen to the people enough. They encourage direct democracy. They speak at blogging conventions. Let's see them put their money where their mouth is. There is nothing more discouraging to a democracy than a divided court abandoning its past precedent, overturning laws in 48 States, and overturning a duly passed Federal statute.

The reasonable reaction of many Americans might be: why bother? Why bother to write and e-mail and petition Congress? Why advocate on behalf of legislation? When it is all said and done, the Supreme Court will appear deus ex machina and declare those laws unconstitutional, even absent any real precedent, text, or tradition to support its decision.

Fortunately, that hasn't been the reaction among our Nation's civic groups. Everybody from the American Legion, to the Fraternal Order of Police, to the Knights of Columbus has urged Congress to support this amendment. They have been tireless in their efforts. They see this constitutional amendment for what it is. All this constitutional amendment does is restore power to the people's representatives in Congress. Read it again:

The Congress shall have power to prohibit the physical

desecration of the flag of the United States.

All it does is restore it to where it was. It was the Court that changed the Constitution. It is not us changing it. We are trying to restore it to where it was and send a message to the Supreme Court that on these great social issues you have to let the elected representatives of the people make these decisions for the people, and you should quit playing around with issues for which you should not have responsibility but the people should.

This is not a perennial partisan issue. This has not just been brought up because we are in an election year. I would bring it up every year if we could. The last time it came up was in 2000. This is overwhelmingly bipartisan. Republicans and Democrats, liberals, moderates, and conservatives all support our efforts. In fact, it makes you wonder who would not support it in the Congress because all we are trying to do is give the power back to the Congress.

Quite the contrary. It is broadly supported on both sides of the aisle, and the groups supporting it are distinctly nonpartisan.

At the Judiciary Committee markup of this resolution a few weeks ago, Senator Feinstein spoke eloquently on its behalf. She has been one of the amendment's strongest supporters. Last week, this is what she had to say in an editorial in USA Today:

Throughout our Nation's history, the flag has been

protected by law. In 1989, 48 of our 50 States had statutes

restricting flag desecration. . . .But its protection ended

in 1989, when the U.S. Supreme Court struck down a Texas law

prohibiting flag desecration. Congress responded by passing

the Flag Protection Act of 1989, but the Supreme Court struck

down that law as well. The only way to restore protection to

the flag is to amend the Constitution. Otherwise, any

legislation passed by Congress would be struck down.

The flag Protection Amendment would not prohibit flag

burning. Rather, the amendment would simply return to

Congress the ability to protect the flag as it has been

protected throughout most of this Nation's history.

That is what she said. This is not a partisan issue. I am confident that all of this constitutional amendment's supporters would prefer to see it off the agenda. We want it passed and sent to the American people for ratification. We are getting very close. We have voted on this amendment in the Senate only twice before. The last time we voted on it was in 2000. Right now, we have 60 upfront cosponsors. Three of my colleagues who are not cosponsors voted for the amendment as Senators in 2000. Another three voted for it while members of the House of Representatives. These are people who are not among the 60.

In the case of Senator Menendez, he is going to have the opportunity to vote for it twice in the same Congress--once as a Member of the House, where he did, and now as a Senator. That is pretty unique.

I have no doubt that if Members voted their consciences, we would be well above the required 67 votes. Unfortunately, radical special interest groups are strongly opposed to this amendment. It appears from some press accounts that they are prepared to bring down the hammer, unless some Members pull back their support with inspired and last- minute changes of heart.

I know many newspaper editorial boards oppose this amendment. They still think it is a banning amendment. They think we are banning flag desecration. No, we are not. Right now, this amendment says the Congress will have the power to prohibit the physical desecration of the flag of the United States. It doesn't ban anything. Many law professors--or some at least--oppose this amendment. The ACLU opposes this amendment. But the people support it. It is insulting to them to suggest that they want to amend the first amendment, as the talking points opposed to our effort put it. This proposal does not amend the first amendment; it restores the power of the people to the people.

Do over 60 colleagues oppose the first amendment? Bipartisan colleagues. Do the majority of Americans in every State oppose the first amendment? Do some of our Nation's finest civic organizations oppose the first amendment? Do four Justices on the Supreme Court of the United States oppose the first amendment? Of course not.

But they do think the Court got these decisions badly wrong. They think the people have the right to protect the flag, consistent with the first amendment. They think the opinion of five unelected Judges should not forever bind the American people.

We need to send this amendment to the States and let them determine whether they are going to ratify it. I guarantee you that it will create a debate on virtue, which has kept this country the greatest country in the world, and values, which our young people need to see more of. We will debate it in every State if we can pass this by 67 votes.

It is beyond time. I do not know what so many of my colleagues fear. They say this is not a major issue. Who is kidding whom? This is the American

flag. This is our national symbol. They say that flag burning is a rare occurrence. That is not that rare.

As this chart indicates--and I will put it up here--flag desecration is an ongoing offense against common decency. These are recent incidents of flag desecration: Montpelier, VT, June 19, 2004; Littleton, NH, September 9, 2004; Las Vegas, NV, September 11, 2004; Sarasota, FL, December 20, 2005; St. Clair Shores, MI, August 27, 2005; Beaumont, TX; Hurricane, UT, July 4, 2005, right on Independence Day; Maryville, TN, July 4, 2005; Murrieta, CA, July 2, 2005; Sarasota, FL, June 28, 2005. There are many more listed here; that is just mentioning some of these. We know there are a lot more than that, I am sure.

Look at this article that just happened a few days ago. A reward was offered Friday for information leading to the arrest of whoever burned seven American flags in the Marine Park section of Brooklyn this week. This is dated June 23, by the way, 2006, last week:

The flags, including one that was hung by a couple after

their son was killed in the September 11, 2001, terrorist

attacks. They were burned in what police said was a case of

criminal mischief. Residents of seven homes woke up Thursday

morning to find their flags torched, police said.

Investigators said they believe the flag burning occurred

some time overnight. ``As we approach the celebration of our

Nation's independence, this July 4, some vandal has defined

our freedoms, rights, and liberties by setting fire to the

American flag,'' said State Senator Martin Golden who offered

a $1,000 reward. ``Flag burning is something we will not

tolerate in our neighborhood''.

Regina Coyle said:

I can't believe someone would actually invade our personal

space. We lost so much. It is the flag.

Other residents said they found the vandalism equally upsetting.

All I can say is that you can go back in time and find hundreds, maybe even thousands of these incidents. We are not even talking about those we don't know about. For the American people, and for me, even one instance of flag burning is one too many. My brother died in the Second World War fighting for us. Another brother-in-law died in Vietnam. We buried our top sergeant marine brother-in-law in Arlington a year or so ago. I feel deeply about this.

The first amendment guarantees another right besides the freedom of speech. It gives the American people the right ``to petition the Government for a redress of grievances.'' I have to tell you, the American people are aggrieved, sick and tired of unelected judges taking the most important issues out of the hands of the people and their representatives and acting like junior legislators who will draft our social policies for us. This is bad for democracy, and it is inconsistent with the American Constitution. The American people have spoken in a historic event. All 50 States--every one of them--have petitioned the Congress to protect the American flag, every one of them. So if you hear some who are opposed to this constitutional amendment come on the Senate floor and say ``this is political, this is an election year,'' think about that.

All 50 States have petitioned us to do what this amendment will do: restore the Constitution to what it was before these five unelected Justices changed it.

As I said before, if we are to be responsive to our constituents, we only have one option: We must pass this amendment and send it to the States for ratification.

I understand some of my colleagues have some reservations about the amendment. Some are very sincere--not all but some are. I urge them to trust the people, to trust their instincts.

This amendment is not going away so long as I serve in the Senate. I will certainly fight for it. Should we pass this amendment, I think we would see perhaps the greatest public debate that we have witnessed in our lifetime. The debate over ratification in every State will be an ongoing history lesson for younger Americans. It will bring them in contact with our veterans to whom we owe our freedom, and it will introduce them to the civic organizations that are the soul and spirit of our democracy.

Yes, there are some very fine people and noted people who don't think we should do this, but if you look at their comments, they are not that they don't think we should restore to the Congress that which the Congress should have. They are actually treating this amendment as if it is an absolute ban of free speech when, in fact, it has nothing to do with that.

I have to admit, if we pass this amendment and it is ratified, I am sure there will be a debate over what form of language should we have to protect our beloved flag. What is important is to have our young people come in contact with the veterans and others to whom we owe our freedoms.

The Constitution begins with ``We the people,'' and in the end it is still we the people, it is the people's Constitution. We should send this constitutional amendment to the States. I want everybody to think about this. As we hear them talk about: Oh, we must protect our rights of free speech, and so forth, this doesn't have anything to do with free speech. Read the words. Indirectly, I guess you could say it does in the sense that undoubtedly there will be a debate if this is passed and ratified, but it would still take a supermajority of the Senate to pass any form of statute afterwards. There would be plenty of protections for those who would disagree with our position. But for those who argued against this amendment, many of whom are constantly arguing about the usurpation of congressional powers by the Executive, especially when the Executive is not of their own party, this is a chance to restore the power back to the Congress that should never have been taken by five unelected Jurists to begin with.

We should send this amendment to the States. We should let the people decide because, after all, that is all we would be doing. If we pass this constitutional amendment, we will be turning it over to the people themselves. Whatever people want to debate they can, and it would take an overwhelming 38 States, or three-quarters of the States, to ratify this amendment so that it would become the 28th amendment to the Constitution.

I can't think of a more complete declaration of the rights of the people than this particular very simple amendment that ``Congress shall have power to prohibit the physical desecration of the flag of the United States.''

Mr. President, I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, pending before the Senate is S.J. Res. 12. It is a one-page resolution which is being suggested for passage by the Senate. It is a matter which we will likely debate the rest of this week. The reason we are going to spend this much time on it is because this one-page document represents a historic change in America. If this amendment were to be ratified, it would mark the first time in our nation's history that we would amend the Bill of Rights of the United States of America.

The handiwork of Thomas Jefferson and our Founding Fathers, which has guided our Nation for over 200 years, which has become a model for nations around the world in terms of liberty and freedom, is about to be changed if the sponsors of this amendment have their way.

It takes a great deal of audacity for anyone to step up and suggest to change the Constitution. It happens. There is an amendment process. But in this particular instance, I think what we are about to do is wrong.

Earlier this month, the Senate debated and voted on a constitutional amendment to ban same-sex marriage. This amendment was, of course, defeated. Now, as I said, we are debating this constitutional amendment to criminalize the desecration of the U.S. flag.

I am not quite sure that our Senate in which we serve still has its bearings. That we would so quickly consider amending this Constitution, which has served our Nation so well and for so many years, so frequently suggests to me that there may be something at work here that goes beyond constitutional law and constitutional study.

This marks the fifth time in 17 years that Congress has debated amending the U.S. Constitution to prohibit burning or desecration of the United States flag--the fifth time. In the final weeks of this Congress, with all of the other urgent challenges facing our Nation, why are we coming back to this amendment, having finished the same-sex marriage amendment unsuccessfully? Well, perhaps the argument has been made--and I think my colleague and friend from Utah, Senator Hatch, just made it--that there is a serious problem in America with flag- burning.

The Citizens Flag Alliance is a group that supports Senator Hatch's position on flag-burning, and they keep track of how many people in this Nation of about 300 million have actually engaged in this disgusting practice of burning our flag. So far, in the year 2006 in the United States of America, with almost 300 million people, the Citizens Flag Alliance has recorded two instances of flag burning-- two--in the entire United States of America. There has been an average of only seven acts of flag desecration annually in America in the last 6 years. So to argue that we have this growing trend toward desecration and burning our flag defies the facts.

Here, the Citizens Flag Alliance gave us a State-by-State background where flags were burned or desecrated in the year 2004. So let's count. In this column of States: None. In this column of States: Two. And here in the State of Vermont: One. So three times in the year 2004, the Citizens Flag Alliance found three incidents where flags were desecrated--three times in the entire year.

In 2005, the same group reported a total of 12 instances--one a month in the United States of America--of people desecrating and burning flags. The source: The Citizens Flag Alliance that supports this.

So to suggest that the United States is somehow facing a rash of this disgusting conduct just isn't true. In fact, it rarely, if ever, happens.

So why would we change the handiwork and fine contribution to America of Thomas Jefferson and our Founding Fathers? I think there is more to the story than what we heard from one of the Senators who came before us a few moments ago. I wonder if there are things which we might be considering on the floor of the Senate of more importance to the people of this country.

Is changing the Constitution because 4 people desecrated American flags this year more important than finding a way to help 1 million Americans who lost their health insurance over the last 12 months? Is debating this amendment how Congress should be spending its time?

When we debated the constitutional amendment to ban gay marriage, I cited a Gallup poll from April. They went to 1,000 Americans and they asked them the following question: What do you think is the most important problem facing this country today--1,000 people across our Nation. Gay marriage--the subject of the constitutional amendment which was defeated and part of the Republican agenda 2 weeks ago--ranked 33rd on the list of important issues facing America in this recent poll.

But wait a minute. What about flag burning? When you ask 1,000 people across America the most important problem facing this country today, where did it show up on the list of American priorities? It didn't. Americans cited 42 different issues as pressing priorities for America, but banning flag-burning was nowhere to be found.

Last week a poll was taken by none other than Fox News. Even though they often fail in their self-proclaimed effort to be fair and balanced, they asked 900 registered voters around the country this question: Which one of the following issues do you think should be the top priority for Congress to work on this summer? This is Fox, my friends, Fox News. They asked 900 voters, and here are the choices they gave them: Iraq, immigration, gas prices, same-sex marriage, and flag- burning. What did our friends at Fox News discover? What percent of Democrats said flag-burning should be the top priority of Congress? Zero.

In the halls of Fox News, I am sure they said, of course you wouldn't expect the Democrats to be patriotic enough to understand that flag- burning is a top priority. No wonder none of the Democrats in our 900- person poll identified flag-burning as a top issue.

But wait. What percentage of Republicans said flag-burning should be the top priority of Congress? Zero. That was the single issue that united Democrats and Republicans. When they looked at the big issues that we could consider, Democrats and Republicans agreed this did not belong on the list.

But it is on the list of the Republican majority in this Senate, and we are going to spend a week on it. We are going to spend a week on it, instead of talking about energy policy in America and bringing down the cost of gasoline for families and businesses and farmers. We are going to spend a week debating this amendment, which the American people have not even identified as a serious priority or a serious problem, instead of dealing with health care in America. We are going to spend an entire week debating this, instead of addressing the issue of global warming, which is a threat not only to our generation, but generations to come.

This amendment is truly a solution in search of a problem. Why are we debating it again? We know the answer. We are here because the White House and the congressional Republican leadership are nervous about the upcoming elections. They want to exploit Americans' patriotism for their gain in November.

It is the same thing with the gay marriage amendment. It wasn't a priority for America; it is a priority for Karl Rove and the Republican strategists.

The real issue here isn't the protection of the flag, it is the protection of the Republican majority. We are not setting out to protect Old Glory; we are setting out to protect old politicians. That is what this is about.

Sadly, Republican leaders are forcing this debate so they can accuse some who disagree with them of being unpatriotic and un-American. You heard it last week, didn't you? Republicans came to the floor and accused Democrats who wanted to start the withdrawal of troops from Iraq of wanting to cut and run. Cut and run, cut and run, over and over again, from the Republican side--this chest-thumping, bring them on, we are loyal to the President at any cost, rhetoric coming forth every single day on the Republican side of the aisle. Then GEN Casey pulled the rug out from under them. And by the end of the week, he took the same position as the Democrats had with their amendment before the U.S. Senate.

So this week the Republicans are going to come back and say that those who won't vote for this flag-burning amendment are somehow unpatriotic and un-American. I think the American people are a lot smarter than that. I think they are going to see this for the political ploy that it is.

I don't say this very often, but when it comes to changing our Constitution to ban flag-burning, I agree with Supreme Court Justice Antonin Scalia. Justice Scalia, arguably the most conservative member of the Supreme Court, was part of the majority who voted to strike down the statute that was previously written to ban flag-burning in 1989. He said in speeches that it made him ``furious'' not to be able to put that defendant who burned that flag in that case--whom he described as a ``bearded, scruffy, sandal-wearing guy burning the American flag''-- in jail. But in Justice Scalia's words:

I was handcuffed. I couldn't help it. That is my

understanding of the first amendment. I can't do the nasty

things I'd like to do.

Like Justice Scalia and most Americans, I am deeply and personally offended by the desecration of our flag. I think burning the flag is a form of protest that is crude and contemptible. But being contemptible and stupid is not unconstitutional in America.

I think we should show a little humility around here when it comes to changing the Constitution. So many of my colleagues are anxious to take a roller to a Rembrandt. Since the adoption of the Bill of Rights, Members of Congress have proposed more than 11,000 amendments to our Constitution. We have passed only 17, and one of these was Prohibition, which we later learned was a political mistake and was repealed.

Why are amendments to the Constitution so rare? Because throughout our history, Congress has always understood that we should change our

Constitution only under the most extraordinary circumstances. We should amend it only when it is absolutely essential. It is a sacred document. It is part of what defines us as America. To reach in and change Thomas Jefferson's Bill of Rights on the floor of the U.S. Senate should be an historic moment and every Member should take pause before they do it.

The flag-burning amendment fails the test. As the Washington Post put it recently in an editorial:

Members of Congress who would protect the flag thus do it

far greater damage than a few miscreants with matches.

That is not just my opinion; it is shared by a lot of people. Colin Powell, a man who has given his life to America, in military service at the highest levels, here is what he said about this flag-burning amendment:

I understand how strongly so many of my fellow veterans and

citizens feel about the flag and I understand the powerful

sentiment of State legislatures for such an amendment. I feel

the same sense of outrage. But I step back from amending the

Constitution to relieve that outrage. 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.

General Colin L. Powell.

Steve Chapman writes for the Chicago Tribune, and here is what he said:

If there is anything American conservatives should revere,

it's the U.S. Constitution, a timeless work of political

genius. Having provided the foundation for one of the freest

societies and most durable democracies on Earth, it shouldn't

be altered lightly or often.

Charles Fried is a leading conservative scholar who served as Solicitor General of the United States under President Reagan. Here is what he said:

The First Amendment to the United States Constitution has

served us since 1791 through wars, including a civil war, and

crises of every sort without the need for amendment. It is an

icon of our freedom. To amend it now comes close to

vandalism.

These are the words of Charles Fried:

Totalitarian countries fear dissenters sufficiently to

suppress their protests. A free Nation relies on having the

better argument.

Incidentally, if we were to pass this constitutional amendment, which Senator Hatch and others have brought to the floor, we would join ranks with only three other nations on Earth that ban flag-burning, and that roster of nations include the following: Cuba, China, and Iran. Oh, yes, and Iraq under Saddam Hussein.

If this amendment were to pass, it would be the first time since 1978--almost 30 years--that both Houses of Congress passed a constitutional amendment.

I recently read a book review in the New York Times. It was about another subject, but there was a quote in there that I think is so apropos. Francis Lieber was a 19th century political philosopher and author of America's modern laws of war. He cautioned against weakening our Constitution during times of war when inflamed passions can make rash solutions seem reasonable. Listen to what Francis Lieber said, and reflect on what we are doing:

It requires the power of the Almighty and a whole century

to grow an oak tree; but only a pair of arms, an ax and an

hour or two to cut it down.

The Bill of Rights has served this Nation since 1791, and with one swift blow of this ax, we are going to chop into the first amendment.

I can understand why veterans, in particular, are offended by the desecration of the flag. They went to battle and risked their lives under the red, white, and blue. The current leadership of the American Legion, whom I respect very much and work with on many veterans' issues, supports this amendment. I respect them for their service to America and our national security. But, with all due respect, there are many veterans who disagree.

Keith Kreul is an Army veteran and past national commander of the American Legion. Listen to what he wrote in an editorial for the Leader Newspapers in Lyndhurst, NJ when the Congress considered this amendment in 1998. Here is what 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

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.

So says the former National Commander of the American Legion, Keith Kreul.

Robert Williams was a bomber pilot in World War II with the legendary 332nd Fighter Group, better known as the Tuskegee Airmen. Listen to what he wrote in the Baltimore Afro-American newspaper when this amendment came up a few years ago:

Our unit would never have existed had it not been for the

long tradition of--and respect for--lawful protest in our

country. . . .

This Tuskegee Airman wrote:

I cringe when I see Congress preparing to pass a

constitutional amendment that would rewrite the First

Amendment--for the first time ever--to ban a form of protest.

It is particularly hard for me as an American war veteran

[Mr. Williams said] to see this action taken in the name of

patriotism.

For while we as a country view our flag as the very essence

of patriotism, it is in reality a symbol of that spirit. And

if the proposed flag desecration amendment wins final

approval, our flag will become a symbol without substance.

Mr. Williams went on to say:

Don't get me wrong. No one endorses the idea of burning the

flag or desecrating it in any way. It is to me a very

repugnant concept. But I find more threatening the idea that

we would change the Constitution every time some American

came up with a new repugnant way to protest.

And then there is John Glenn. What can you say about John Glenn, a fighter pilot in two wars, one of our premier astronauts, a great United States Senator, a marine with such a great record of public service? He risked his life so many times for this country. He flew under that flag so many times. Here is what he wrote in testimony to the Senate Judiciary Committee in 2004:

Like most Americans I have very, very strong feelings about

our flag. Like most Americans, I have a gut reaction in

opposition to anyone who would dare to demean, deface, or

desecrate the flag of the United States. But also, like most

Americans, I am concerned about any effort to amend the

Constitution and the Bill of Rights.

I have watched as those who expressed qualms or doubts or

reservations about this amendment run the risk of being

smeared, of being labeled as unpatriotic or as a friend of

flag burners. . . . Many of us feel unconformable talking

about issues that involve such private and personal emotions.

We do not wear our emotions on our sleeves, especially when

it comes to how we feel about the flag and about patriotism.

We do not parade around those things that are sacred to us.

John Glenn said he was speaking out against the flag burning amendment because ``it would be a hollow victory indeed if we preserved the symbol of our freedoms by chipping away at fundamental freedoms themselves.

He went on to say:

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.

He is right. Our freedoms are dearer than their symbols. S.J. Res. 12 is overly vague and filled with potential loopholes. What do the words ``flag desecration'' mean? If someone took a flag and wrote on it, is that desecration? Here is an instance where the President of the United States, when he was walking through a ropeline, was handed an American flag and asked to sign it. I do not believe that is desecration of the flag. I don't think anyone would argue that question. But this amendment is not clear as to where you would draw a line. As gifted as my colleagues may be who have brought this amendment to the floor, I am afraid the language they brought is not going to stand the test of time. Will we prosecute people for wearing star-spangled bathing suits at the beach? How about a T-shirt that fashions the flag into a peace sign? Would we put people into jail for sitting on an American flag blanket at a Fourth of July picnic? Wiping their mouth with a flag napkin?

Instead of signing a name on a flag, what if someone wrote ``death to America''? Is that now desecration? The symbol of the American flag is used to sell everything from cars to cupcakes. Should those ads be illegal?

One of the most haunting images from Hurricane Katrina was the photo of a frail, elderly African-American woman waiting for help with a blanket that looked like an American flag wrapped on her shoulders. Is that desecration? I don't think so.

Would we outlaw only future acts? Could a person be arrested for possessing a flag quilt that has been in the family for generations? Don't the police in America have more important things to do? How many hours would future Congresses spend trying to define what this amendment says?

There is a better way. A number of us are coming together on a bipartisan basis to propose a criminal statute that makes it clear that when someone damages the U.S. flag with intent to incite or produce imminent violence, when someone burns a flag to intentionally threaten or intimidate a person, when someone steals a flag that belongs to the Federal Government and destroys it, when someone steals a flag and destroys it on Federal land--all of these are specific acts that we would criminalize. That does not rise to the level of a constitutional amendment, but it says that we believe, on a bipartisan basis, the flag should be treated differently. The flag does deserve special respect. This narrowly tailored solution corrects the mistakes of the statute Congress passed in 1989 and the Supreme Court struck down a year later. That statute was too broad. This new proposal is specific and clear.

One of the celebrity supporters of the flag amendment is Rick Monday. I bring him up because he was a Chicago Cubs outfielder, and I am honored to represent the State of Illinois where there are many Cubs fans. He played for the Cubs from 1972 to 1976 and was well known and well liked.

Everyone respects Rick Monday's act of courage 30 years ago at a baseball game at Dodgers Stadium when he ran after two people who were about to light an American flag on fire. He grabbed the flag away just as it was about to be burned.

But I agree with an editorial published last week in the Chicago Sun- Times, which said the following:

Our appreciation of [Rick] Monday was not diminished by his

appearance last week at a rally for the proposed flag

desecration amendment--an event at which he exhibited the

rescued flag, which was presented to him by the Dodgers. But

however heartfelt this gesture was, it was wrongheaded in

lending support to a manufactured cause with no real value

except a political one, the equivalent of throwing red meat

on the table.

Tommy Lasorda is a great baseball manager, and I follow baseball. The last time this amendment came up, Senator Hatch brought Tommy Lasorda in to testify. Tommy Lasorda recalled the incident; he was the manager of the Dodgers on the day it occurred, and Tommy Lasorda was emotional about these people trying to burn the flag and Rick Monday running to its rescue.

I asked Tommy Lasorda this question: Did they televise those two guys jumping out of the stands and burning the flag on the field?

He said, ``No.'' I said, ``Why not?''

``You televise that sort of thing,'' Tommy Lasorda said, ``and it encourages it.''

So what would be the effect of calling for a constitutional amendment on the floor of the Senate to ban an act that occurs so rarely in the United States? My fear is that it would only encourage people to consider that sort of thing. We would put a spotlight on it instead of saying it is only happening two or three times a year, it certainly is not a national epidemic deserving of a constitutional amendment.

This flag amendment is all about the next election so that people who vote against it can be labeled as unpatriotic and un-American. There are better ways to show our commitment to our Constitution and our flag and our veterans. How about health care for our veterans? How about making sure we keep our promises to those who return from battle, that we keep our promises to them that they be given medical care and housing and the education they were promised? I wish the people pushing this flag desecration amendment so hard would spend their energy on issues far more tangible to our Nation's veterans, such as health care.

Earlier this year, the President submitted his budget. He proposed to shortchange our veterans when it comes to their health. The President's budget would force more than 50,000 Illinois veterans, many of whom are low income, to pay more for their health care. Their monthly prescription drug costs would double.

The American Legion, one of the most zealous advocates for the flag burning amendment, recently issued an action alert letter and said they are very concerned about the underfunding of the VA. I salute the American Legion. I hope they will channel more energy into helping our veterans than into changing our Bill of Rights.

The commander in chief of the Veterans of Foreign Wars, Jim Mueller, said this about President Bush's fiscal year 2007 budget:

The proposal to increase military retiree healthcare

premiums is absolutely unacceptable. . . .I urge Congress to

ensure that those serving in uniform and those who served

faithfully for many years are not forgotten in the budget

process.

Hats off to the VFW and the American Legion for speaking out for veterans. Channel that energy into making sure that veterans get a fair shake instead of watching a week go by on the floor of the Senate where we debate this unnecessary constitutional amendment.

Giving the veterans a flag amendment is not substitute for health care.

Flag burning does disturb some veterans. Another way of showing respect for our veterans is to protect the sanctity of their funerals. I am going to be offering an amendment tomorrow to do just that.

By now, many Americans have heard of the disgraceful and hateful actions of one man named Fred Phelps. Mr. Phelps calls himself a minister, a religious minister. But his gospel seems to begin and end with hatred and intolerance. About 15 years ago, this Mr. Phelps and a small band of his followers began picketing funerals of people who have died of HIV/AIDS. They have reportedly picketed 22,000 funerals.

When their vile acts of hatred and bigotry stop generating the publicity they seek, they looked for new targets. They began to stage protests at the funerals of our brave young men and women who have given their lives fighting for America in Iraq and Afghanistan. In the past year, these so-called Christians, these hate-mongers, who would use the Bible as their shield, have protested at more than 100 military funerals.

They claim the deaths of American Armed Forces, if you can believe this--they claim the deaths of American soldiers are God's punishment for Americans' tolerance of gays and lesbians. That is an affront to civilized behavior. There may well be a special place in the afterlife for people like Mr. Phelps, but there is no place for his brand of hatred at veterans' funerals in this life.

Last month, Congress passed and the President signed into law the Respect for America's Fallen Heroes Act, which prohibits their demonstrations at or around our national cemeteries. Tomorrow, I am going to offer an amendment to this measure--a statutory amendment not a constitutional amendment--to expand that previous law so it applies to the funerals of all veterans, whether they are buried in a national cemetery, a church cemetery, or anywhere else.

My amendment will also prohibit protests at funeral homes, houses of worship, and other locations where deceased veterans are honored and buried. We can honor our veterans and protect their loved ones from this intrusion on their grief without weakening our Constitution and the freedoms for which veterans fought.

I hope my colleagues join me. I will offer my proposal as an amendment to the Bennett/Clinton amendment to this underlying bill so we can, in one amendment, criminalize the burning and defacing of the flag and also protect military funerals from Mr. Phelps and others like him who would bring great disrespect at the funerals of our soldiers who deserve the highest respect.

I have been very careful in writing this amendment to make sure it follows the previous law, so there will be no successful constitutional challenges in that regard.

I am also considering an amendment which I think is long overdue. It would ban the consideration of constitutional amendments in election years. We have seen too darned much politicking with the Constitution in this Chamber this month.

James Madison wrote in Federalist 49 in 1788 that the U.S. Constitution should be amended only on ``great and extraordinary occasions.'' It appears now that biennial elections are great

and extraordinary occasions in the minds of the Republican leadership of the Senate. Madison warned of the ``danger of disturbing the public tranquility by interesting too strongly the public passions'' through frequent constitutional amendments. Over 11,000 proposed constitutional amendments have been introduced in Congress, including 66 during the current 109th Congress.

Over the past three decades, the number of proposed constitutional amendments considered on the Senate floor has increased dramatically. When in doubt here, amend the Constitution: from two amendments between 1973 and 1983, to five amendments between 1983 and 1993, nine amendments between 1993 and 2003, to four already in this 3-year cycle since 2003.

There appears to be a trend toward considering constitutional amendments on the Senate floor during even-numbered years which, coincidentally, happen to be election years.

Constitutional amendments should be considered by Congress without politicization. We should consider these for the serious suggestions that they are, instead of electioneering, and that is what has happened too often on the floor of the Senate.

Americans' reverence for the flag does not have to be coerced or policed. It is something we feel in our bones. When it comes to the Bill of Rights, I trust Thomas Jefferson a lot more than Karl Rove. I believe the words of Thomas Jefferson have endured. I believe the political tactics of Mr. Rove and the Republican Party will not endure when it comes to using the Constitution for political purposes.

Remember what happened after September 11? Remember all the American flags that suddenly appeared? Stores sold out of flags. In a time of national trauma and grief, these flags were our comfort and our strength. They were a visible symbol of our unity and our faith that America would endure. Our Nation had suffered a terrible loss, but the American flag waved proudly.

Sadly, in the 5 years since then, with our Nation at war, there are those who seek to pit us one against the other for political reasons. Now they want to use our flag as a wedge issue in this election.

This political effort to ``brand'' the flag as belonging to one party causes some to feel sad and disillusioned. Bill Moyers, the journalist, thinker, and former Presidential adviser, was among many who felt troubled by the effort to redefine respect for the flag as a partisan issue.

Last year, Bill Moyers made a speech about freedom in America in which he talked about the flag. He offered some profound words of wisdom that are worth reflecting upon today. He said the following:

I wore my flag tonight. First time. Until now I haven't

thought it necessary to display a little metallic icon of

patriotism for everyone to see. It was enough to vote, pay my

taxes, perform my civic duties, speak my mind, and do my best

to raise our kids to be good Americans.

Sometimes I would offer a small prayer of gratitude that I

had been born in a country whose institutions sustained me,

whose armed forces protected me, and whose ideals inspired

me; I offered my heart's affections in return. It no more

occurred to me to flaunt the flag on my chest than it did to

pin my mother's picture on my lapel to prove her son's love.

Mother knew where I stood; so does my country. I even tuck a

valentine in my tax returns on April 15.

So what's this doing here? Well, I put it on to take it

back. The flag's been hijacked and turned into a logo--the

trademark of a monopoly on patriotism. On those Sunday

morning talk shows, official chests appear adorned with the

flag as if it is the good housekeeping seal of approval.

During the State of the Union, did you notice Bush and Cheney

wearing the flag? How come? No administration's patriotism is

ever in doubt, only its policies. And the flag bestows no

immunity from error. When I see flags sprouting on official

lapels, I think of the time in China when I saw Mao's little

red book on every official's desk, omnipresent and unread.

I think Bill Moyers had it right. The flag amendment should not be used as a proxy for patriotism.

I respect our flag as the symbol of the freedom granted to us by the Bill of Rights, and it is painful for me to see it burned or otherwise defiled. I strongly believe that flag burning is an insensitive and shameful act, but I believe that it would be destructive to amend the Bill of Rights for the first time in our nation's history and restrict the precious freedoms ensured by the first amendment, simply to address an act which occurs in America only a few times a year.

The real test of our belief in the Bill of Rights--the real test of our patriotism--is when we rise in defense of the rights of those whose views we disagree with or even despise. The right to free speech is a bedrock of our democracy. Amending our Constitution's Bill of Rights would be a strike against the very freedoms for which the flag stands and for which so many Americans have given their lives.

Mr. President, it is my understanding we are now on the constitutional amendment.

I thank the Chair.

Mr. President, in 1791, the year that the Bill of Rights became part of our Constitution, the State of Vermont joined the Union, and then the State of Kentucky followed. Then Congress saw fit to change the design of the American flag to include 15 stars and 15 stripes, one for each State. In fact, it was this flag, the one recognizing the addition of Vermont and Kentucky to the United States, that flew over Fort McHenry in 1814 and that inspired Francis Scott Key to write the ``Star-Spangled Banner.''

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

The world has never had a good definition of the word

liberty. The American people just now are much in need of

one. We all declare for liberty, but using the same word we

do not mean the same thing.

I would hope that all of us in this Chamber champion liberty. If any of us were asked, we would say: Of course we do. But when I hear some talk about the desire to restrict our fundamental freedoms by cutting back on our first amendment rights for the first time in our history, you see why people wonder. The danger of this amendment is that it would strike at the values the flag represents and the rights that have made this Nation a vibrant democratic republic in which we have enjoyed freedom of religion, freedom of the press, freedom of expression, and freedom to think as individuals.

Along with Vermonters, I find the American flag inspirational in all its incarnations, whether it is the current flag with 50 stars that was carried in formation at Parris Island when my youngest son Mark became a proud member of the U.S. Marine Corps; whether it is the American flag with 48 stars under which Vermonters joined in fighting World War II, including members of my family; the flag commemorating Vermont's becoming a State; the Bennington flag that commemorated our Declaration of Independence; or the revolutionary flag with 13 stars in a circle said to be designed by George Washington and sewn by Betsy Ross.

Ultimately, the debate over this amendment turns on the scope we think proper to give to speech which deeply offends us. For two-thirds of the Senate to vote to amend the Bill of Rights to amend the U.S. Constitution because, as the Constitution requires, that we deem it ``necessary'' in 2006, strikes me as extraordinary. The Senate oath of office, which the people of Vermont have authorized me to take six times, requires that we ``support and defend the Constitution.'' And I believe that doing so means opposing this effort to cut back on Vermonters' constitutional rights and freedoms.

Regrettably, the Senate leadership is returning again and again to using constitutional amendments as election year rallying cries to excite the passion of voters. That is wrong. The Constitution is too important to be used for partisan political purposes--and so, in my view, is our American flag.

With the rights of Americans being threatened in so many ways today by this administration, this is most especially not the time for the Senate to vote to limit Americans' fundamental rights or to strike at the heart of the First Amendment.

The chairman has referred to Justice Oliver Wendell Holmes. It was Justice Holmes who wrote that the most imperative principle of our Constitution was it protects not just freedom for the thought and expression we agree with, but ``freedom for the thought that we hate.'' He also wrote that ``we should be eternally vigilant against attempts to check the expression of opinions that we loathe.''

We all know that the First Amendment never requires people to defend it when it is upholding popular speech. It needs defense when the speech is unpopular.

What is so distinctive about America is that our Government does not endorse religious or political orthodoxy. The price of our freedom of expression is our willingness to protect the expression of those with whom we disagree. America does not impose a state-designed dogma on its free people the way totalitarian regimes do. We value our freedom and we protect the freedom of others.

Justice Robert Jackson made this point with unsurpassed eloquence in a Supreme Court decision made during World War II. He did this in West Virginia State Board of Education v. Barnette. His decision for the Supreme Court upheld our fundamental tradition of tolerance, holding that State school boards may not compel teachers and students to salute the flag.

Remember, Justice Jackson was writing during World War II--during wartime. He wrote:

[F]reedom to differ is not limited to things that do not

matter much. That would be a mere shadow of freedom. The test

of its substance is the right to differ as to things that

touch the heart of the existing order. If there is any fixed

star in our constitutional constellation, it is that no

official, high or petty, can prescribe what shall be orthodox

in politics, nationalism, religion or other matters of

opinion or force citizens to confess by word or act their

faith therein.

That was a powerful statement by Justice Jackson, at a time when certainly the attention of this country was focused on a real war effort, the effort of World War II. But he knew what unifies our country is the voluntary sharing of ideals and commitments. Americans are free, free to offend but also free to respond to crude insults with responsible action--the way many of us remember and applaud--when that crowd at Dodger Stadium responded by spontaneously singing ``God Bless America'' when a couple of miscreants attempted to burn the American flag in the outfield 30 years ago, shortly after the end of the Vietnam war.

When I am home in Vermont, our family home, I fly the flag--not because the law tells me to but because, as an American, I want to. I fly the flag out of pride. I remember my parents, still alive, when they used to look with pride to see that flag flying and they knew their son was home from Washington. It is the same sense of pride I felt when I saw my son march in uniform under that flag, our flag, our American flag. It is the same sense of pride I feel when I see that flag flying over this Capitol Building when I come to work each day, and I stop and look at it sometimes when the Senate leaves at 2 or 3 o'clock in the morning. I look at the dome and I see that flag illuminated and flying there.

One of my colleagues, former Senator Bob Kerrey, a man of great bravery, who received the Congressional Medal of Honor for his bravery in battle, said in a recent opinion piece in the Washington Post, ``Real patriotism cannot be coerced.'' It has to be a voluntary, unselfish, brave act to sacrifice for others.

I ask unanimous consent that a copy of his op-ed be printed in the Record.

The French philosopher Voltaire once remarked that liberty is a guest who plants both of his elbows on the table. I think what Voltaire meant by that is that liberty is sometimes even an unmannerly, vulgar guest, yet liberty requires we tolerate rudeness even when admittedly it is hard to do so. That is what allows us, in turn, the individual freedoms that we cherish for ourselves.

Despicable, outrageous gestures like flag burning are hard to tolerate, but we do so because political expression is so central as to what makes America great and what protects the rights of each of us to speak, or to worship as we choose, and to petition our Government for redress. The flag is a symbol of the greatness that the American ideals of freedom and liberty have helped foster in this blessed land. The Constitution ultimately goes beyond symbols. The Constitution is the real bedrock of our rights.

In a letter to me expressing his opposition to the constitutional amendment, my friend General Colin Powell said it very well. Let me quote Colin Powell in this regard. He said:

We are rightfully outraged when anyone attacks or

desecrates our flag. Few Americans do such things and when

they do they are subject to the rightful condemnation of

their fellow citizens. They may be destroying a piece of

cloth, but they do no damage to our system of freedom which

tolerates such desecration. . . .

I understand how strongly so many of my fellow veterans and

citizens feel about the flag. . . . I feel the same sense of

outrage. But I step back from amending the Constitution to

relieve that outrage. The First Amendment exists to insure

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 still be flying proudly, long

after they have slunk away.

What powerful, powerful words from General Powell. I ask unanimous consent a copy of his letter be printed in the Record.

Another American who honorably served our country, Gary May, Chairman of Veterans Defending the Bill of Rights, wrote in a letter:

This country is unique and special because the minority,

the unpopular, the dissident also have a voice. The freedom

of expression, even when it hurts the most, is the truest

test of our dedication to the principles that our flag

represents.

I ask unanimous consent a copy of his letter be printed in the Record.

I have been to countries, as have many of us, countries with dictators--countries like China and Cuba, the former Soviet Union. They require a law to protect their flags and their symbols. I have taken great pleasure in those countries to point out that America does not need the kind of laws they do. America protects our symbols. The American people honor our national flag out of respect, not out of fear that they may break a law. I point out to them what real freedom is, and it includes the freedom to dissent and to differ, even in ways that I would find obnoxious and offensive.

As the son of a printer, I was brought up to know how important the First Amendment is to maintaining our democracy. It allows us to practice any religion we want, or no religion if we want. It allows us to think as we choose and to express ourselves freely, even though others may disagree.

We do not have a state-imposed orthodoxy in this great and good country. Instead, we have freedom and diversity--diversity in religion, diversity in thought, diversity in speech, diversity that is guaranteed and protected by our Constitution, our Bill of Rights, and particularly the First Amendment. When you guarantee and protect diversity, then you guarantee and protect democracy. When you guarantee and protect diversity, by definition you are going to have a democracy. No real democracy exists without diversity. But when you exclude and stamp out diversity and freedom of thought and expression, you act to stamp out democracy.

We have seen this in history. In the former Soviet Union or other totalitarian governments of history, when they wanted to destroy democracy they started, sometimes in little ways at first, but ultimately to stamp out diversity in dissent.

American democracy has succeeded because we have fought to live with that unruly guest with his elbows on our table of which Voltaire spoke, and to tolerate speech and expressive conduct that probably virtually all of us here would find disrespectful and crude.

We protect dissent, not because we oppose liberty but because we love liberty.

Wendell Phillips, a great New England abolitionist, wrote:

The community which dares not to protect its humblest and

most hated member in the free utterance of his opinion, no

matter how false and hateful, is only a gang of slaves.

Probably no person disagreed more vehemently with Wendell Phillips on the burning issues of their day than Senator John C. Calhoun of South Carolina. Yet Senator Calhoun came to much the same conclusion in a speech he gave on the Senate floor, our Senate floor, in 1848, more than 150 years ago. Senator Calhoun said:

We have passed through so many difficulties and dangers

without the loss of liberty that we have begun to think that

we hold it by divine right from heaven itself. But it is

harder to preserve than it is to obtain liberty. After years

of prosperity the tenure by which it is held is too often

forgotten; and I fear, Senators, that such is the case with

us.

This is what Senator Calhoun said 150 years ago.

I am immensely proud to be given the privilege to be one of the two Senators who have the opportunity to represent the State of Vermont. Vermont has a proud tradition defending liberty and encouraging open debate. We are the State of the town meeting. If you want to experience open debate, I urge you to attend a Vermont town meeting. Everybody gets heard. Everybody gets heard about every disagreement, every differing view. A Vermont town meeting is as democratic as you can get. There is debate. There is expression. There is disagreement and agreement. There is freedom and democracy being lived.

In fact, Vermont for many years engaged in such a great and open debate on this very issue of how best to approach protection of our flag. For years the Vermont General Assembly remained the only State legislature not to have passed a resolution in favor of a constitutional amendment. In January 2002 the Vermont Legislature passed a resolution, but it was written, interestingly, in a manner that shows Vermont's respect for the Constitution. It concludes that the Congress should take steps to ``ensure that proper respect and treatment . . . always be afforded to the flag,'' but in ways consistent with the principles that the flag represents, foremost among these being, ``the protection of individual freedoms enumerated in the First Amendment to the United States Constitution, including free speech.''

Our Legislature stopped short of taking the easy way out and simply parroting a politically popular demand to amend the Constitution. Rather, Vermont remained true to its proud tradition of encouraging open debate and called on Congress to ``explore all avenues available'' to protect the flag from desecration. Vermont's actions are consistent with our strong tradition of independence and commitment to the Bill of Rights. Indeed, Vermont's own Constitution is based on our commitment to freedom and our belief it is best protected by open debate.

At one time, when we were afraid we might not have that chance for open debate, Vermont declared itself an independent republic. In fact, Vermont did not and would not become a State until 1791. That was the year the Bill of Rights was ratified. Following that tradition, this Vermonter is not going to vote to cut back on the First Amendment of the Bill of Rights for the first time since its adoption.

Vermont sent Matthew Lyon to Congress. He, incidentally, cast the decisive vote, Vermont's vote, for the election of Thomas Jefferson. That election was thrown into the House of Representatives. Had Matthew Lyon voted otherwise, Thomas Jefferson would not have become President. Matthew Lyon was the same House Member who was a target of a shameful prosecution under the Sedition Act in 1789. Why? For comments he made in a private letter. And the power of the U.S. Government, under that horrible act, came down on Matthew Lyon. He was locked up for daring to be so critical in a letter.

Vermonters showed what they thought of the Sedition Act and what they thought of trying to stifle free speech. While Matthew Lyon was in jail, Vermonters reelected him and sent him back to Congress. Along with our own lone Congressman, Congressman Sanders, I am working on that commitment to having a post office named for Matthew Lyon in Vermont.

Vermont has stood up for the rights of free speech before and since. Vermont served the Nation during the dark days of McCarthyism. In one of the most remarkable and praise-worthy actions of any Senator from any

State, Vermont Senator Ralph Flanders stood up for democracy in opposition to the repressive tactics of Senator Joseph McCarthy. When so many others, both Republicans and Democrats, ran for cover, Senator Ralph Flanders of Vermont, a Republican, a conservative, a businessman, came to the Senate floor and said: Enough is enough. He asked for the censure of Senator McCarthy and allowed people once more in this country to speak freely.

Vermont has a great tradition we cherish. It is one I intend to uphold. I honor the Vermont tradition that includes Senator Flanders when I oppose cutting back the First Amendment and the Bill of Rights.

I know there is an impulse, a natural impulse, to restrict speech with which we disapprove. But America is strong because we do not fear freedom; we do not restrict freedom of speech. We should have confidence our institutions are stronger than a bunch of hooligans and that their ideas are better than those of cranks and crackpots.

We know the vast majority of the people in this great country are patriotic, especially thinking of September 11 the way the American people have demonstrated patriotism, as rarely in our history. I can never remember a time in our history when I have seen more people fly more flags, and proudly.

The crisis confronting America is not flag burning. Americans honor flags as a symbol of our country. Americans also know we face real challenges. The confidence of the American people and this Government and institutions is quite low. But even though confidence in the institutions of our Government may be low, Americans love their country. They respect the flag. It is the misuse of their Government for partisanship, the corruption of the Government and its processes, it is a lack of credibility and competence that they see in their Government that concerns Americans in the face of real threats and real problems.

Mark Twain said: Honor your country, question your Government. That is what is happening today.

I see respect for our flag in the actions and attitudes of the citizens of America. I see it in the dedication of Don Villemaire and his friends of Essex Junction, VT, who stood and proudly waved American flags every single night after the horrible tragedy of September 11, 2001, until the search for remains officially ended. That was a vigil every single night in Essex Junction, VT--longer than 8 months. That is showing respect.

I see in Montpelier, my birthplace, in their annual Independence Day parade, where flags are waved in support of our country and our soldiers. I see it in the memorial of American flags planted along the paths of funeral processions of Vermonters killed serving their country in Iraq and Afghanistan. Vermonters' respect for the flag is born from respect for this country and the values it protects. Our patriotism is felt, it is willful. It is not forced on us.

Instead of telling the American people, the people beyond the 100 who have the privilege of serving here, what they can and cannot do, maybe we should talk about what we 100 do and how we do it. We honor America when we in the Senate do our jobs, when and if we work on the matters that can improve the lives of ordinary Americans. Let the 100 Members of the Senate work to raise the minimum wage, lower gas prices, provide better health care and health insurance for more Americans. Let the 100 Senators act to fund the promise of stem cell research that could end the suffering of so many Americans.

The proposed amendment to the Constitution would do harm to the First Amendment protections that bind us all against oppression, especially the oppression of momentary majority thought. The amendment violates the precept laid down more than 200 years ago that ``he that would make his own liberty secure must guard even his enemy from oppression.''

It undercuts the principle that a free society is a society where it is safe to say and do the unpopular. Let us not give away our liberties in order to impose orthodoxy so others cannot offend.

Let me be clear, I am deeply offended when anyone defiles the American flag. I expect one thing that unites all 100 Senators is that every one of us is deeply offended when the flag is defiled. Two years ago, a flag incident occurred in Vermont outside St. Augustine's Church in Montpelier. Someone wrapped a statue of the Virgin Mary in the American flag and set it on fire. This is a church in which I have been baptized. When this act was first reported, I called it an act intended to outrage, an attack on the religious community, and a gross show of disrespect for the flag. We also know acts like these can and should be prosecuted under Vermont's law, as I suspect they should be under all of the laws of any of the 50 States. Laws prohibit such damage to property.

If someone seeks to do harm to the flag I proudly fly in my home when I am there, they, too, would be prosecuted under Vermont law. In fact, having been a prosecutor in Vermont, knowing what I know of Vermont juries, they would be convicted, but I can replace a flag of mine that was destroyed, and would. I can buy another flag. But if we act to diminish the Bill of Rights that protect our rights and freedoms of a quarter billion Americans and of generations to come, we cannot replace that. We cannot go to the store and buy a new Bill of Rights once it is diminished.

Ours is a powerful Constitution, all the more inspiring because of what it allows and because we protect each other's liberty. Let us be good stewards. Let us preserve and protect for our children and our children's children a Constitution with the freedoms we were bequeathed by the founding patriots and by the sacrifice of generation after generation of Americans.

I urge Senators to think about this vote. Do not diminish that pillar on which our democracy and our freedoms depend. Do not cut back on the First Amendment of our Bill of Rights for the first time in American history.

I yield the floor.

Mr. President, is there an order in effect for a time agreement? How much time do I have, in other words?

Mr. President, I rise to address the resolution that is before us today and to speak in favor of its adoption. But before I do that, I think it is important first to read what the resolution says, because I think what we are actually going to be voting on has been misconstrued and, to some extent, inadvertently misrepresented. Also, during the course of my comments, I would like to address those who say that protecting Congress's prerogative to pass laws against flag desecration and those who say it is not important and emphatically disagree with them. And to those who say there are other things we can and should be doing, I say, well, we have been very busy doing a lot of very important things, but I certainly believe we have enough time in our crowded schedule to address this important issue as well.

There are also those who say amending the Constitution is simply something we should not do, even though we

have done so 27 times during the course of our Nation's history, and even though the 27th amendment to the United States Constitution provides that Congress can't increase its salary without having an intervening election. If we can amend the Constitution for that, which I agree is an important provision, we can certainly reinstate Congress's authority to pass laws protecting our national emblems and our national symbols such as the United States flag.

There are also those who try to get off--and again, I know people of good faith have serious disagreements. I don't mean to disparage the good faith of those who say this, but I would challenge those who say we can pass a statute and avoid having to pass a constitutional amendment. All I would say to that is: Been there. Done that. Doesn't work. The Supreme Court held that subsequent statutory provision unconstitutional, just like it did in the Texas case in 1989, the Texas law that prohibited desecration of the flag.

First of all, let me read the constitutional amendment being proposed, because there are some who say we are being asked to ban flag burning. In fact, this is a restoration of the authority under the Constitution to Congress to pass such laws as it deems appropriate, and we can talk about what the details of those bills would be later on, once the amendment is adopted. But it says, simply:

Resolved by the Senate and House of Representatives of the

United States of America in Congress assembled, that the

following article is proposed as an amendment to the

Constitution of the United States, which shall be valid to

all intents and purposes as part of the Constitution when

ratified by the legislatures of three-fourths of the several

States.

The article says simply this:

The Congress shall have the power to prohibit the physical

desecration of the flag of the United States.

As I said, this constitutional amendment doesn't actually make it a criminal act to desecrate the flag; it doesn't say what the penalties will be. What this constitutional amendment does is reinstate Congress's historical authority to protect the flag against desecration and leave for a later date what exactly that statute, that bill, would look like.

The reason I feel so strongly about this provision is because of the unique nature of our national symbol. The American flag is a monument, a symbol of our freedom, our country, and our way of life. Why in the world would we refuse to protect it against desecration?

As a former President of the United States has noted:

We identify the flag with almost everything we hold dear on

Earth. It represents our peace and security, our civil and

political liberty, our freedom of religious worship, our

family, our friends, our home. We see it in the great

multitude of blessings of rights and privileges that make up

our country.

Another President has said it this way:

Our flag is a proud flag and it stands for liberty and

civilization. Where it has once floated, there must be no

return to tyranny.

We not only pledge allegiance to the flag each day in the Chamber of the U.S. Senate; children across America recite those words at the beginning of each school day, too. We celebrate Flag Day on June 14 of each year. We pin to our lapels flag pins and paste it to the windows of our cars and trucks. Following 9/11, you could hardly buy a flag, because they were in such demand as a rallying symbol of American patriotism and resolve in the wake of that awful attack, as depicted by this well-remembered picture of first responders in New York erecting the American flag out of the rubble following the deaths of 3,000 innocent Americans.

We insist on special rules of etiquette when a flag is handled. When I was a Boy Scout growing up, that was one of the things you learned. You learned flag etiquette, how to demonstrate respect for this unique symbol of our country, including learning how, when the flag is old and tattered, that special rules of etiquette dictate its disposal.

By displaying the flag, we demonstrate our gratitude to the generations passed who have fought and died for our country. And we remind ourselves of the obligation that we have to preserve our freedom for the generations yet to come and to pass along to our children and grandchildren the blessings of liberty that we have come to enjoy because of the sacrifices of those who have gone before. We drape this emblem over the coffins of those who have died in service to our country, those who have given the last full measure of devotion to keep us and our freedom safe. We proudly fly the flag over our Capitol here in Washington, DC, and at State capitols and public buildings all over our country.

Mr. President, recently I read a book about the most famous picture in the history of photography. This is a picture we are going to put up on this board that all of you will instantly recognize. This is a picture of Marines erecting the American flag on Iwo Jima in World War II, where thousands upon thousands of Marines gave their lives to take this island from the occupiers. The book I read recently is called ``Flags of Our Fathers,'' written by a man named James Bradley; his father was John. John Bradley, the father of the author, stands in the middle of the most reproduced figure in the history of photography. Only days before this photo was taken, John Bradley, a Navy corpsman, had braved enemy mortar and machine gun fire to administer first aid to a wounded Marine and then dragged him to safety. For this act of heroism John Bradley would receive the Navy Cross, an award second only to the Congressional Medal of Honor.

One of the amazing things about this book, ``Flags of Our Fathers,'' about this photograph and about John Bradley's service to his country as a Marine Corpsman and the service of others of these Marines who erected this flag on Iwo Jima in World War II, is that John Bradley, like so many of the Greatest Generation, never spoke of this historic moment or really much of his military service to his family or friends.

This reminds me a lot of my dad, who was a B-17 pilot in World War II who, on his 13th mission helping to knock out part of Hitler's war machine in Nazi Germany, was shot down and spent 4 months in a German prison camp. And like John Bradley, my dad never talked much about his military service. But James Bradley, John Bradley's son, discovered three boxes of artifacts his father had saved about Iwo Jima after his death, which launched him into a quest to find out a little bit more about his father's past and the past of the five other flag-raisers depicted in this picture.

This book explores the lives of all of these flag-raisers, showing how in times of national crisis ordinary Americans have found within themselves an uncommon courage and a capacity to attempt, and achieve, the impossible.

Indeed, that is one of the things that makes the American flag unique. What becomes of a country that has no special symbols; that somehow, over the passage of time, has deemed itself too sophisticated, too intelligent, too cynical to be choked by emotion when our flag is raised or when the pledge is spoken or when our National Anthem is sung?

During the Civil War, as James McPherson, a internationally known historian of that period has noted:

The most meaningful symbol of regimental pride were the

colors--the regimental and national flags, which bonded the

men's loyalties to unit, State, and Nation.

He records one combatant as saying:

When the American flag appeared above the battle smoke on

the enemy works, it is impossible to describe the feelings

one experiences at such a moment. God, country, love, home,

pride, conscious strength and power, all crowd your swelling

breast. Proud, proud as a man can feel over this victory to

our arms. If it were a man's privilege to die when he wished,

he would die at that moment.

These are not my words; these are the words of those who, in the service of their country, gained inspiration and purpose from this symbol that is a unique symbol, unlike any other we have in this country.

But ultimately, there are those on the floor of the U.S. Senate who ask: Well, is this really important enough to amend the United States Constitution? To those I would say, the question is not whether the Constitution should be amended; it already has been by judicial decree. The question then remains, who gets the final word? Five Justices on the United States Supreme Court or we, the people?

Not important? I disagree. This, I believe, is the ultimate test of our form

of government, based as it is upon consent of the government. Our Founding Fathers recognized that our Constitution might need to be amended over time and thus article V of the Constitution creates a difficult but nevertheless a way forward to amend the Constitution when the American people see fit.

Of course, this process will not stop upon this body's passage of this amendment. Assuming we are able to get the two-thirds vote requirement in the Senate and in the House, then it will go to the States, where three-quarters of the States must ratify the amendment for it to become the 28th amendment to the United States Constitution.

I believe, to quote the Declaration of Independence, that the powers of the Federal Government emanate from ``the consent of the governed.'' In other words, I believe that we as a nation do not have to accept as final the judgment of five Judges who, in 1989, in the Texas v. Johnson case, held the Texas flag desecration law unconstitutional.

The amazing thing about this debate is I do not think there are very many people who recognize that before 1989, when the U.S. Supreme Court struck down the Texas flag desecration statute, 48 States, including the District of Columbia, had laws criminalizing flag desecration--48 States. But, lo and behold, 200 years after its adoption, five Judges decided that the first amendment of the Constitution of the United States, which guarantees free speech, renders all of those 48 flag desecration statutes unconstitutional as being a limitation on free speech. Don't mind the fact that it is really not about speech, it is about behavior. It is not about what you say, it is about what you do. But the Supreme Court, five members of the Court, didn't seem to have too much trouble with that.

Chief Justice Rehnquist, recently departed, in the dissent to that case of Texas v. Johnson in 1989 that struck down all 48 flag desecration statutes, wrote:

The American flag, then, throughout more than 200 years of

history, has come to be the visible symbol embodying our

Nation. It does not represent the views of any particular

political party, and it does not represent any particular

political philosophy. The flag is not simply another ``idea''

or ``point of view'' competing for recognition in the

marketplace of ideas. Millions and millions of Americans

[Chief Justice Rehnquist said] regard it with an almost

mystical reverence, regardless of what sort of social,

political or philosophical beliefs they may have. I cannot

agree that the first amendment invalidates the act of

Congress and the laws of 48 of the 50 States which make

criminal the public burning of the flag.

Justice Stevens, not necessarily of the same sort of judicial ideology or bent as Chief Justice Rehnquist, also dissented, and he said:

The flag is more than a proud symbol of the courage, the

determination, and the gifts of nature that transformed 13

fledgling Colonies into a world power. It is a symbol of

freedom, of equal opportunity, of religious tolerance, and of

good will for the other peoples who share our aspirations. .

. . The value of the flag as a symbol cannot be measured.

Justice Stevens concluded:

The case has nothing to do with ``disagreeable ideas.'' It

involves disagreeable conduct that, in my opinion, diminishes

the value of an important national asset . . .

And that Johnson, the defendant in that case, was punished only for the means by which he expressed his opinion, not the opinion itself.

I mentioned a moment ago that there are those of our colleagues who in good faith think that we can fix this problem by simply passing another flag desecration statute in the U.S. Congress. I would point out to my colleagues that we have already tried to do that right after the Texas v. Johnson case. The U.S. Congress overwhelmingly passed a statute which was struck down by the same five Justices on the U.S. Supreme Court in a case called United States v. Eichman.

It is clear that no statute can pass constitutional muster as long as the Texas v. Johnson decision is on the books. There are some who would offer an amendment--maybe during the course of this debate--who in good faith think that if they limit the reach of the statute to fighting words, in other words some act that would provoke violence in a public place, that somehow they have fixed the problem. But we are not just talking about provoking people by what is tantamount to fighting words by protecting the flag. We are talking about protecting a valuable national symbol of all of the things our country has come to mean, both to us and to those abroad; and that the good faith of our colleagues notwithstanding, no statute that we might pass could possibly fix the problem of five Judges assuming after 200 years that flag desecration is protected speech, that it violates the first amendment of the Constitution.

We all know as a matter of constitutional law that no statute can fix a constitutional violation. So only a constitutional amendment, passed by Congress and ratified by three-quarters of the States, could possibly fix this problem.

Those who complain and say this is an imaginary problem, that we do not have acts of flag desecration today or why are we talking about this in 2006 if the Supreme Court held this flag desecration statute unconstitutional in 1989, there is a very simple reason we are still talking about it today. It is because we have been working on it under the leadership of Senator Orrin Hatch and others for 11 years.

I think the first constitutional amendment that was introduced was in 1995, and we have gradually been making progress each year by getting more and more support in the Senate. I hope our colleagues today will meet the challenge and deliver the 67 votes needed in this Chamber in order to move this constitutional amendment along.

To those who say this is an imaginary problem, I will say simply look at the facts. The Citizens Flag Alliance has a Web site in which they demonstrate 17 acts of flag desecration in the United States over the last 2 years. It may be these are not widely reported in the press. I am not sure exactly what the reason is. But there are 17 acts of flag desecration just in the last 2 years. This is not a contrived or imaginary issue.

I remember the ranking member of the Judiciary Committee, the Senator from Vermont, saying he was vehemently against the constitutional amendment because he didn't think we ought to tamper with the Constitution--notwithstanding the Founding Fathers provided article V to give us a means to amend the Constitution when a sufficient number of people in the Congress and across the country see fit. But I think he said something like: If anyone had the temerity to desecrate the flag in his presence, they wouldn't need a statute criminalizing that act. They would have to get past him to get to wherever it was they were going, suggesting that perhaps individuals who were sufficiently motivated might, through acts of violence, perhaps, dictate justice.

I do not think that is a sufficient answer. This is a real issue. It is not contrived, as demonstrated by the 17 acts of desecration in the last 2 years. It is not a problem we can fix by passing a statute and patting ourselves on the back and saying: Yes, we fixed that problem. This is a problem that calls for a constitutional amendment.

Yes, I know how serious that is. I don't lightly suggest amendments to the Constitution. But I sincerely believe in my heart of hearts this unique symbol of our country and all of our aspirations and dreams--not only for people here but the kinds of aspirations and dreams that are a beacon to those who will come here in the future, and the generations that come here after--I believe it deserves special protection. Thus, I believe we ought to take this opportunity to say yes.

Congress does have a voice in this. Yes, the American people do have a voice in whether the flag is protected. The only way we can do that is by passing this resolution by two-thirds of the Senate and moving this process along and then leaving it up to the people of America, the three-quarters of the States that will have to ratify this before it becomes final. Let them have a word.

I yield the floor.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent the order for the quorum call be rescinded.

I thank the Chair.

Mr. President, I rise to speak about the pending matter before us, S.J. Res. 12 which would amend the Constitution of the United States. There are only seventeen words in the amendment: The Congress shall have power to prohibit the physical desecration of the flag of the United States. These seventeen words have great significance.

I hold dear the great genius of our wonderful Constitution. I have carried this tattered copy with me every day for as long as I have been a Member of this body. It was given to me by my seatmate here, the senior Senator Bryd from West Virginia. I treasure this copy of that document for many reasons, not the least of which is because it was given to me by Senator Byrd, but also because I find myself referring to it almost on a daily basis.

This copy includes not only the Constitution and the Bill of Rights, but also the Declaration of Independence. It is a part of my daily wardrobe, be it weekends or during the week here. It is a reminder of how fortunate we are to live in a country that has, as its founding document, a set of words, language, that not only speaks to the hopes and dreams of all Americans, but even beyond the borders of this country, because the Founders, the Framers of the Constitution, spoke of eternal truths in this document.

While the language applies to only those who live in this country, their words have, of course, inspired millions of other people all across the globe. It is not uncommon to read the constitutions of developing countries and find literally verbatim the language in our own U.S. Constitution. This is a great tribute to not only the Framers but to those who came after them. Those that have upheld, supported, and defended--as millions of Americans have, some with the ultimate sacrifice--their lives, to protect and defend this country and the principles and ideals on which it was founded. The Constitution has sustained itself now for the more than 200 years. Giving us the power to be free and independent people.

So this great genius of our Constitution enshrines in it the words of the eternal aspirations of humanity. I believe that Alexander Hamilton laid out a framework for constitutional amendments and how we ought to think of this remarkable document that serves as the basis of all that we believe and hold dear when he said:

The sacred rights of mankind are not to be rummaged for,

among old parchments, or musty records. They are written, as

with a sunbeam in the whole volume of human nature, by the

hand of the divinity itself; and can never be erased or

obscured by mortal power.

It is a rather beautiful quotation that I think captures what many of us believe to be the case when we talk about our Constitution, talking about the hand of divinity itself helping scribe these words, that it is ``not to be rummaged for, among old parchments, or musty records'' but rather ``written, as with a sunbeam in the whole volume of human nature.''

So it is important, when we consider this document and particularly the Bill of Rights, which speak to our personal freedoms, that we consider all and any proposal to challenge the words included in those 10 amendments.

There have been over 11,000 attempts in the last 200 years to amend our Constitution. Throughout the years, there have been only a handful of those proposals that have actually been adopted, usually when there was a described constitutional crisis before us. We did so to extend the right to vote to women and we did so to abolish slavery.

These are just two examples throughout our history when we have found it appropriate and proper to amend the Constitution, but always when we felt there was an underlying principle dealing with basic fundamental rights.

Now, we all know that the horrible act of flag burning does occur. We have all seen the visions on television describing some group in some country or another that decides it is going to burn the American flag. We all know how we feel when we see that. But, of course, all my colleagues know--and I am sure the overwhelming majority of American citizens know--we can not change their behavior by altering the Constitution. As annoying as it is, as troubling as it is, and how I know we all react to it, we can not affect those particular acts of desecration.

Today we are talking about these acts that occur in this country. Let me quickly say I think it is worthy to try to come up with some language statutorily to deal with this issue. But my hope is my colleagues, regardless of political persuasion, would think long and hard about what we are about to do here; and that is, to change the Constitution.

A proposal similar to this one was offered in 1989, again in 1990, in 1995, and in the year 2000. In every single case, the proposals have been rejected. I do not question any of my colleagues over their dismay and horror in watching our flag be desecrated. Yet, in every single instance, we have found it appropriate to reject an amendment to the Constitution. I would hope that would be the case again today.

Mr. President, I fly the American flag every day at my home in Connecticut when I am there. I take great pride in doing so. In fact, my neighbors can always tell when I am home. I live in a house, an old schoolhouse built in 1853. It was the successor schoolhouse to where Nathan Hale taught in Connecticut. The Nathan Hale Schoolhouse is about 150 yards from where I live in Connecticut. When that one-room schoolhouse became too small in the 1850s, they built a two-room schoolhouse that served the neighborhood where I live in East Haddam, CT, for almost 100 years until the 1940s. I bought that schoolhouse about 25 years ago, and it has been my family's home for a quarter of a century.

My neighbors always know when I am home because I fly the American flag from that old schoolhouse. I take great pride in doing so. I don't just do it on Memorial Day or the Fourth of July or other national holidays, but every single day I am home. As a way of expressing my affection for what that flag means, what it stands for, and what it has meant to generation after generation of people in our great country.

I will not take a back seat to anyone in my reverence for the flag, how important it is and what it means. But I also believe it is important to be a patriot, a true patriot, where we not only defend our flag but we also defend the Constitution and the Bill of Rights. That is really what is at risk here today, when we talk about this resolution. It is not so much the flag that is at risk but our Bill of Rights, if we attack this document because the passions of some get aroused over the acts of those who would desecrate our flag. That really is the issue before us.

Let us have a statutory law but let us not attack this wonderful Bill of Rights of ours. The proposed amendment is made up of 17 words, 17 words that would dramatically alter the importance of the Bill of Rights and diminish the freedoms provided by that document. I don't doubt the patriotism of any Member of this Chamber. I strongly believe we all love our country. We love our Constitution. We love our flag. In my view, desecration of the flag, as a symbol of our freedom, the Constitution, and our democracy, is deplorable and should not be tolerated. It

goes without saying that every Member of Congress and the overwhelming majority of Americans consider flag burning to be offensive and abhorrent. That is to state the obvious. The question is not whether we deplore the desecration of the American flag but whether we are in some way going to desecrate the Constitution and the Bill of Rights. To truly honor our Nation and the people who have given their lives for it, we must not only protect our flag but the principles of freedom and justice that it stands for.

I have often said when students ask me about the Constitution and the Bill of Rights and what it means, the first amendment of the Bill of Rights, which incorporates freedom of speech, really tests whether each and every one of us is willing to defend someone who would say something or do something we might find abhorrent. It is not whether we are willing to stand up and defend someone who says something we agree with but, rather, whether we understand the principles our Founders and Framers intended when they wrote the Constitution and the Bill of Rights, that we are willing to protect and defend the right of someone to say something that we totally disagree with and that we find offensive and abhorrent. That is the true test, not whether we are willing to stand up and applaud what someone says but whether our instincts are to deplore what they say but defend their right to say it. That is really what the first amendment is all about when freedom of speech is being invoked.

Our Founding Fathers cautioned us to avoid situations like the one we are in today. James Madison advised that amendments to the Constitution should be limited to ``great and extraordinary occasions.'' Regrettably, some have not heeded Madison's cautionary words. Since 1789 when the Congress first convened, there have been over 11,000 proposals to amend the Constitution of the United States. Over sixty have been offered in this Congress alone. But the majority of our Nation's leaders have taken the words of Madison to heart, and they have not allowed this document to be altered. Since the ratification of the Bill of Rights, only 17 amendments have been successful. Moreover, despite all of the trials that this country has been through, no Congress has ever felt so compelled to doctor the Bill of Rights. It is remarkable when you consider the trials and tribulations we have been through.

The act of burning our flag is unacceptable and condemnable. But the reality is that it is exceedingly rare as well. I did my best to find the reported incidences of flag burning throughout our history. I went back and examined as many possible cases as I could. We have found less than 200 cases since our Nation's founding and only a handful documented in the last few years. Where is the constitutional crisis? Where is the epidemic? Less than two hundred cases in more than 200 years. Yet I would suspect that if we end up adopting this constitutional amendment and amend the Bill of Rights, there will be those, as the Senator from Illinois pointed out, who will consistently try to press against the envelope of the language of these 17 words to prohibit desecration of the flag.

With all the other issues we need to grapple with, such as health care, education, the quality of life of our military men and women, and whether we ought to be doing more to increase the opportunities of people in this country. With all of the legitimate debates that ought to occur, it is shocking that we are taking several days of the Senate's time to debate an amendment to the Constitution where there is hardly any incidence or examples of a problem today. As I said, there have been less than 200 cases of flag desecration in more than 200 years. Clearly, there is no extraordinary occasion, in my view, such that Madison spoke of warranting ratification of this amendment. We might feel disgusted by the act of flag burning, but we are clearly not faced, by any estimate, with a constitutional crisis.

Proponents of this amendment say that tolerating even one burned flag is equivalent to acquiescence of such an act. I totally disagree. Our Nation is strong enough to tolerate a few errant acts, and this strength is the source of our democracy's greatness. It is the ability and willingness to tolerate acts like that on occasion that makes us a stronger and better people. Supporters of this amendment may believe this vote is a test of one's patriotism or love of country. On the contrary, the true measure of our faithfulness to the flag is our fidelity to the principles of freedom and justice that it represents. That is the ultimate test of one's patriotism.

I would associate myself with the comments of a former colleague of ours, Bob Kerrey, Senator from Nebraska, who today is president of a fine university in New York. He is also a Medal of Honor winner for services as a Navy SEAL in Vietnam. I recall when this amendment was before us on several previous occasions, he would stand up and talk about what it meant for him to lose a limb in the uniform of our country defending our Nation, talking about how important it was to defend the Constitution. He articulated his opposition to this particular proposal in a recent Washington Post editorial in relation to September 11th with the following statement:

Real patriotism cannot be coerced. Our freedom to speak was

attacked--not our flag. The former, not the latter, needs the

protection of our Constitution and our laws.

There is no question in my mind that our flag will continue to serve as a symbol of our Nation's history--our founding principles of freedom, liberty, and justice--long after the conclusion of this debate on the floor of the Senate.

Our former colleague, Senator John Glenn of Ohio, who served this Nation as a combat pilot in Korea, an astronaut, and as a colleague of ours in this body, put it very well:

There is one way to weaken the fabric of your country, and

it is not through a few misguided souls burning our flag. It

is by retreating from the principles that the flag stands

for. And that will do more damage to the fabric of our Nation

than 1,000 torched flags could ever do.

I believe history and future generations will judge us harshly, as they should, if we permitted those who would defile our flag to also defile our future and to defile the Bill of Rights. Let us leave the Constitution unsullied by proposals such as this which would needlessly restrict our liberties as a people.

I will repeat again: The great genius of our Constitution is that it enshrines in word the eternal aspirations of humanity. We may try to amend it, but if we do so in a manner at odds with those aspirations, then we act at our peril and in folly.

I repeat Alexander Hamilton's quote:

The sacred rights of mankind are not to be rummaged for,

among old parchments, or musty records. They are written, as

with a sunbeam in the whole volume of human nature, by the

hand of the divinity itself; and can never be erased or

obscured by mortal power.

In our quest to protect the flag, we must be careful not to undermine the principles that it stands for. Attacking the Bill of Rights, a document that has never been changed--not one comma, not one semicolon, not one word, since its ratification in 1791--undermines those principles. This is a time to bring our Nation together to focus on the important challenges we face today. We must face them as a nation, not as individuals, if we are going to prevail.

At best, this amendment is another political stunt, I am afraid, aimed at dividing our Nation, inflaming the passions of our constituencies, make one party angry at another, one group of citizens angry at another. What worthwhile result has ever emerged from that kind of anger? What good has ever flowed from the passions provoked by appealing to the worst instincts in people? I have never seen a single benefit that has occurred as a result of that effort.

Once again, we find ourselves inflaming passions over an issue that is nonexistent, the ``constitutional crisis'' of flag-burning. It is just not there. This would be a profound deviation from our past and chip away at our freedoms and liberties that we are working so hard to protect.

Every generation is challenged with the responsibility of seeing to it that future generations will have the opportunities and benefits of our country. Those benefits and those opportunities flow very directly from the Constitution of the United States and, most particularly, from the Bill of Rights. I hope that we will be careful about this. We are not owners of this document, the Constitution; we are merely stewards of this document. We are charged

with the responsibility during our tenure, on our watch, however long or brief it is, to see to it that these principles will be passed on to coming generations. To start fooling with them unnecessarily, I think, puts this document and what it stands for at risk.

I hope our colleagues, when the vote occurs on this, will find it in their hearts and good conscience to leave the Bill of Rights alone. This is not a time that it needs to be amended.

I yield the floor.