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Senator Byrd

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June 27, 2006

Byrd Backs Faster Plan to Protect Flag, Constitution

Senator Byrd on Tuesday offered the following remarks as the Senate debated a proposed Constitutional amendment on flag burning. Senator Byrd believes that we can protect the flag without changing the Constitution. That’s why he is cosponsoring legislation that prohibits desecration of the flag and imposes criminal penalties, including fines and imprisonment, on anyone who damages or desecrates a flag while trying to incite violence or causing a breach of the peace.

We are here today, once again, to debate the wisdom and utility of amending the United States Constitution to outlaw desecration of the American flag. As I have stated repeatedly and sincerely over the years, there are few acts more deeply offensive to any of us than the willful destruction of our flag. The flag is a symbol of our Republic; a unique symbol of national unity and a powerful source of America’s pride.

I love the flag and all that it represents. I revere the flag because it is a symbol of the liberties that we enjoy as American citizens. These are liberties that are protected by the Constitution of the United States and the Bill of Rights. The Constitution is the instrument that provides for what the flag represents. It is the Constitution that has been, and continues to be, the source of our freedom. And we celebrate our freedom every time we pledge allegiance to the flag, and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all.

Seven years ago, in contemplation of a similar moment when the Senate was confronted with a constitutional amendment banning flag desecration, I spent long hours contemplating both the legal bases and the need for such an amendment. I said at that time, and I say again, today, that I know of few subjects that have come before the Senate which have caused me greater anguish and consternation. I knew seven years ago, and I know today, that many West Virginians and others support this amendment. But based on my continued examination of the matter, I believe that I must remain opposed to it.

I oppose it, not because I do not love the flag, because I do. I oppose it, not because I fail to respect the sacrifices made by our veterans, our law enforcement officials, and our first responders, who for the benefit of all Americans have given their lives in defense of our country and our flag, because I do.

Instead, I oppose it because, while I agree that desecration of the flag is abhorrent, I believe that amending the Constitution to prohibit flag desecration flies in the face of First amendment rights like freedom of speech. Flag desecration remains a rare and isolated event in this large nation of ours. The vast majority of Americans respect the flag and fly it with pride. They do not abuse it. The Senate Judiciary Committee has not held one hearing on this proposal. It is especially troubling that the Senate would seek to amend the Constitution and the First Amendment without holding even a single hearing on the need for this amendment.

Now, I know that some who favor this amendment believe that the burning or damaging of even one flag, or part of one flag, is sufficient to justify the adoption of this extraordinary legislative remedy. I, too, cringe from, and condemn, any desecration of any flag. However, I do not agree that it is necessary to amend the Constitution to prohibit it. Further, this constitutional amendment provides no actual punishment of those who desecrate the flag. Plus, if protection of the flag is a pressing concern – and I acknowledge that, to many people, it is – why do the backers of the constitutional amendment not support pending legislation of which I am a cosponsor, which could be enacted to prohibit desecration of the flag more quickly? As we all know, a constitutional amendment requires ratification by three-fourths of all 50 states, which could take up to seven years. And, it is likely that additional legislation to enforce the amendment would have to be enacted after that.

I also will not support this constitutional amendment, because it continues to be my heartfelt belief, though I wish I were mistaken, that the primary effect of the amendment will be to create more, rather than fewer, incidents of flag destruction. Zealous defenders of the First Amendment who are offended, rightly or wrongly, by the passage of this amendment, will surely cast themselves in a new role: namely, as provocateurs who, newly inspired, will deliberately seek to test the boundaries established by this proposed amendment, if it is adopted. This is more than a matter of symbolism; this is a question of respect for the founding document of the Republic and the supreme law of the land. Any disrespect for the Constitution is a repudiation of the basic principles and laws of our country, and I do not relish giving a tiny minority of troublemakers ammunition to denigrate not only the flag, but also the Constitution.

Again, as I have stated repeatedly, this does not mean that I believe destruction of the flag is trivial or that encouraging reverence for the flag is not an important goal of our government. I simply do not believe that sporadic instances of flag burning should result in our advocating the course of amending the Constitution as a remedy. As I have recounted in prior speeches on this subject, the Constitutional Convention in 1787 debated in much depth whether there should be any provision for amending the Constitution. Recognizing, however, that occasional revisions might be necessary, the Convention finally agreed upon a compromise that deliberately made it difficult to amend the Constitution by requiring successive supermajorities. To that end, Article V of the Constitution sets up a cumbersome two-step process to amend it. The first step is approval either by two-thirds of Congress or -- and this has never been done -- by a convention called for by two-thirds of the states. The second step is ratification by three-fourths of the states.

Given the hurdles that were deliberately established by Article V, it is no surprise that so few amendments to the Constitution have been approved. There are twenty-seven amendments in all, and the first ten of the twenty-seven were ratified en bloc in 1791. Those ten constitute our Bill of Rights. Think of it: in the two hundred and sixteen years, there have been just 17 additional amendments. If we disregard the 18th and 21stAmendments, marking the beginning and end of Prohibition, we are left with only 15 amendments in 216 years! And, as I have advised my colleagues before, these 15 amendments can generally be divided into two, roughly equal categories. One category consists of those amendments that deal with the structure and organization of the three branches of government -- the legislative, the executive, and the judicial.

These include: the 11th Amendment, preventing the federal courts from hearing suits against states by citizens of other states; the 12th Amendment, regarding the election of the President and Vice President; the 17th Amendment, establishing the direct election of Senators; the 20th Amendment, regulating presidential terms and related matters; the 22nd Amendment, limiting Presidents to two terms; the 25th Amendment, regarding presidential succession; and the 27th Amendment, deferring congressional pay raises until after an intervening election.

There is little need to justify the inclusion of these provisions in the Constitution; however we may feel about them personally, their subject matter -- the structure of the federal government -- fits perfectly within that of Articles I through IV.

The second category of constitutional amendments consists of those that narrow the powers of government and expand or protect fundamental personal rights. These include the 13th Amendment, banning slavery; the 14th Amendment, which extended citizenship to all persons “born or naturalized in the United States, and subject to the jurisdiction thereof” and guaranteed all citizens certain basic protections; and the 15th, 19th, 23rd, 24th and 26th Amendments, each of which extended the vote to new groups of citizens.

Clearly, the flag desecration amendment goes in a new direction. For constitutional purposes, as I have said before in these debates, it is neither fish nor fowl. It does not address a structural concern; it does not deal with federal relations between the national and state governments; it extends, rather than narrows, the powers of government something that is antithetical to the whole thrust of the Constitution; and it does not protect a basic civil right. Indeed, many opponents of the amendment argue that it restricts personal liberty, namely the right of freedom of expression.

The 13th Amendment forbidding slavery may be viewed as the only other amendment regulating the conduct of individuals. The 13th Amendment was the product of a bitter, fiercely contested civil war, and it was necessary to end one of the most loathsome and shameful institutions in our nation’s history. This was an exceptional amendment necessitated by exceptional circumstances.

I have introduced a resolution in support of a constitutional amendment protecting voluntary prayer in school. This is also an exceptional amendment required by exceptional circumstances. Although the Supreme Court has never expressly prohibited children from voluntarily praying in school, children are discouraged from praying in school. School administrators are loathe to address the issue for fear they will be assailed, wrongly, for having broken the law. Confusion regarding the legal posture of voluntary prayer in school has created an impermissible, exceptional circumstance which, I believe, must be addressed in a way that permits school children to pray voluntarily as they deem appropriate. Consequently, I have proposed this year, as I have numerous times over the past 40 years, a constitutional amendment that simply clarifies that the First Amendment neither requires nor prohibits voluntary prayer in school. This amendment would address the exceptional circumstances that afflict thousands of schoolchildren, nationwide, who mistakenly believe that prayer should not be a part of their daily lives at school.

In the final analysis, it is the Constitution that is the foundation and guarantor of the people’s liberties, protecting their rights to freedom of speech and to worship as they please. The flag represents all of the cherished liberties which we as Americans enjoy -- liberties explicitly protected by the text of the U.S. Constitution and the Bill of Rights. The flag is a symbol of all that we hold near and dear, and of our nation’s history. It is also a symbol of our Constitutional values. The flag lives only because the Constitution lives. Yet, as I have said in past debates on this issue, the Constitution, unlike the flag, is not a symbol; it is the thing itself. I think it might be well if, in addition to focusing on efforts to protect the flag against injury, injury which, though reprehensible, does not damage Constitutional principles, we make a greater commitment to learning the historical context of our flag as well as the actual text and meaning of the United States Constitution.

I do not believe that Americans can participate meaningfully in their government if they do not know the legal foundation and principles upon which it is based. I believe that greater familiarity with the provisions of the Constitution would give all Americans not only an enhanced appreciation of the flag as being a symbol of the liberties that are enshrined in the Constitution and the Bill of Rights, but also a literal understanding of our government’s checks and balances, their purposes, and of the duties of each of our three branches of government to protect our personal freedoms.

Old Glory lives because the Constitution lives, without which there would be no American Republic, no American liberty, and no American flag. We love that flag. But we must love the guarantees of the Constitution more. For the Constitution is not just a symbol; it is, as I say, the thing itself.

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