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, tomorrow is Flag Day and I am proud to be joined by 21 of my colleagues in introducing an amendment to the Constitution giving Congress power to prohibit the physical desecration of the flag of the United States. At a time when many issues divide us, the flag to which we pledge allegiance ought to be one thing that unites us.

On this day in 1777, the Continental Congress adopted a resolution designating the design of the flag of the United States. President Woodrow Wilson first issued a proclamation in 1916 officially establishing June 14 as Flag Day and Congress did so by statute in 1949.

States began adopting laws protecting the American flag in the late 19th century and every state had adopted such a law by 1932. Congress adopted the Federal Flag Code in 1942 providing uniform guidelines for displaying the flag and in 1968 enacted the Federal Flag Protection Act.

We have, as they say, come a long way--but not in a good direction. Gregory Johnson, a member of the Revolutionary Communist Party, was prosecuted under State law for torching an American flag at the 1984 Republican National Convention in Dallas. Five years later, in Texas v. Johnson, the U.S. Supreme Court held that the State flag protection law violated the First Amendment. Congress quickly revised the Flag Protection Act but in United States v. Eichman, the Supreme Court held in 1990 that it too violated the First Amendment.

I believe these two cases, decided by the narrowest 5-4 margins, were based on an incorrect interpretation of the First Amendment. But I also believe that the Constitution belongs to the American people, not to Federal judges.

The Constitution embodies the will of the American people in setting rules for government. The Constitution defines what the federal government may do by enumerating its powers in the body of the Constitution. It defines what government may not do by identifying individual rights in the amendments to the Constitution.

The Supreme Court has had its say, concluding that neither States nor the Federal Government may prohibit desecration of the American flag. But the Supreme Court does not have the last word about what the Constitution says or what the Constitution means. The American people do. They alone have authority to change the Constitution's rules for government.

This is why I first introduced a flag protection constitutional amendment on June 22, 1989, just one day after the Supreme Court's decision in Texas v. Johnson. The American people can decide whether to change their Constitution only when an amendment is proposed and sent to the States for ratification. The American people should have that opportunity regarding protection of this unique symbol of national unity.

Today is the ninth time I have introduced a flag protection amendment. The Senate has voted five times on such proposals, including three of mine. The bipartisan support has grown each time--from 51 votes in 1989, 58 votes in 1990, 63 votes in 1995 and 2000, and 66 votes in 2006, just one short of the \2/3\ required by the Constitution.

Members of Congress must keep two things in mind. First, even if it is ratified, this amendment would not prohibit flag desecration. It would merely give Congress authority to do so. Remember what the Supreme Court did in its pair of decisions. The court did not say government should not protect the flag, but said that government may not do so. This amendment would restore that authority. I believe that a vigorous and public debate about our shared values and principles and about the flag as a unique symbol of national unity would be very healthy for America. We can have that debate only when the Constitution allows it and with this amendment the Constitution would.

Second, members of Congress must remember our role in the constitutional amendment process. Congress cannot amend the Constitution. We can propose amendments, but the Constitution is not changed until \3/4\ of the States say so. Congress should not deprive the American people of the opportunity to express their will on this important issue.

The American people want that opportunity. All 50 State legislatures have indicated their support for a constitutional amendment to allow protection of the flag.

Just a few days ago, President Obama issued the annual proclamation designating this week as National Flag Week and designating today as Flag Day. He urged all Americans to observe these ``with pride and all due ceremony . . . as a time to honor America, to celebrate our heritage in public gatherings and activities, and to publicly recite the Pledge of Allegiance to the Flag of the United States of America.'' I believe that we can make that ongoing observance and celebration complete by restoring authority to protect this symbol of national unity.