Testimony of Walter Dellinger Before the Senate Judiciary Committee on the Proposed Flag Desecration Constitutional Amendment

Testimony Before the United States Senate Judiciary Committee
on

A Proposed Flag Desecration Constitutional Amendment

Walter Dellinger[1]

Mr. Chairman, and Members of the Committee:

As you are aware, in 1989 the Supreme Court held in Texas v. Johnson[2] that a state could not, consistent with the First Amendment, enforce a statute criminalizing flag desecration against a demonstrator who burned an American flag. In 1990, in United States v. Eichman,[3] the Court held that the First Amendment prohibited the conviction of demonstrators for flag burning under a federal statute that criminalized mutilating, defacing, or physically defiling an American flag.

For fourteen years, then, the flag has been left without any statutory protection against symbolic desecration. For fourteen years, one thing, and only one thing, has stood between the flag and its routine desecration: the fact that the flag, as a potent symbol of all that is best about our country, is justly cherished and revered by nearly all Americans. Senator Hatch has eloquently described the flag's status among the American people:

The American flag represents in a way nothing else can, the common bond shared by a very diverse people. Yet whatever our differences of party, politics, philosophy, race, religion, ethnic background, economic status, social status, or geographic region, we are united as Americans. That unity is symbolized by a unique emblem, the American flag.[4]

It is precisely because of the meaning the flag has for virtually all Americans that the last fourteen years have witnessed no outbreak of flag burning, but only a few isolated instances, immediately and roundly condemned. If proof were needed, we have it now: with or without the threat of criminal penalties, the flag is amply protected by its unique stature as an embodiment of national unity and ideals.

It is against this background that one must assess the need for a proposed constitutional amendment (S.J. Res. 4) that would permit the criminal punishment of those who ""physically desecrate"" the American flag. The amendment, if adopted, would for the first time in our history alter the Bill of Rights adopted over two centuries ago. Whether in the future some set of truly exigent circumstances might justify tampering with the Bill of Rights is a question we can put to one side here. For you are asked to assume the risk inherent in a first‑time edit of the Bill of Rights in the absence of any meaningful evidence that the flag is in danger of losing its symbolic value. The unprecedented amendment before you would create legislative power of uncertain dimension to override the First Amendment and other constitutional guarantees. More fundamentally, it would run counter to our traditional resistance, dating back to the time of the Founders, to resorting to the amendment process. For these reasons, the proposed amendment ‑ and any other proposal to amend the Constitution in order to punish a few isolated acts of flag burning ‑ should be rejected by this Congress.

I.

The text of the proposed amendment is short enough to quote in full: ""The Congress and the States shall have power to prohibit the physical desecration of the flag of the United States."" The scope of the amendment, however, is anything but clear. Because the proposed amendment fails to state explicitly the degree to which it overrides other constitutional guarantees, it is entirely unclear how much of the Bill of Rights it would trump.

By its terms, the proposed amendment does no more than confer affirmative power upon Congress and the states to legislate with respect to the flag. Its wording is similar to the power‑conferring clauses found in Article I, Section 8 of the Constitution: ""Congress shall have power to lay and collect taxes,"" for instance, or ""Congress shall have power . . . to regulate commerce . . . among the several states."" Like those powers, and all powers granted government by the Constitution, the authority given by the proposed amendment would seem to be limited by the Bill of Rights and the Fourteenth Amendment.

The text of the proposed amendment does not purport to exempt the exercise of the power conferred from the constraints of the First Amendment or any other constitutional guarantee of individual rights. Read literally, the amendment would not alter the result of the decisions in Eichman or Johnson, holding that the exercise of congressional and state power to protect the symbol of the flag is subject to First and Fourteenth Amendment limits. Rather, by its literal text, it would simply and unnecessarily make explicit the governmental power to legislate in this area that always has been assumed to exist.

To give the amendment meaning, then, we must read into it, consistent with its sponsors' intent, at least some restriction on the First Amendment freedoms identified in the Supreme Court's flag decisions. What is difficult, and profoundly so, is identifying just how much of the First Amendment and the rest of the Bill of Rights is superseded by the amendment. Once we have departed, by necessity, from the amendment's text, we are in uncharted territory, and faced with genuine uncertainty as to the extent to which the amendment will displace the protections enshrined in the Bill of Rights.

We do not know, for instance, whether the proposed amendment is intended, or would be interpreted, to authorize enactments that otherwise would violate the due process ""void for vagueness"" doctrine. In Smith v. Goguen,[5] the Court reversed the conviction of a defendant who had sewn a small flag on the seat of his jeans, holding that a state statute making it a crime to ""treat contemptuously"" the flag was unconstitutionally vague. We cannot be certain that the vagueness doctrine applied in Smith would limit as well prosecutions brought under laws enacted pursuant to the proposed amendment.

Nor is this a matter of purely hypothetical interest, unlikely to have much practical import. The amendment, after all, authorizes laws that prohibit ""physical desecration"" of the flag, and ""desecration"" is not a term that readily admits of objective definition. On the contrary, ""desecrate"" is defined to include such inherently subjective meanings as ""profane"" and even ""treat contemptuously"" itself. Thus, a statute tracking the language of the amendment and making it a crime to ""physically desecrate"" an American flag would suffer from the same defect as the statute at issue in Smith: it would ""fail[] to draw reasonably clear lines between the kinds of nonceremonial treatment that are criminal and those that are not.""[6]

The term ""flag of the United States"" is similarly ""unbounded,[7] and by itself provides no guidance as to whether it reaches unofficial as well as official flags, or pictures or representations of flags created by artists as well as flags sold or distributed for traditional display. Indeed, testifying in favor of a similar amendment in 1989, then‑Assistant Attorney General William Barr acknowledged that the word ""flag"" is so elastic that it can be stretched to cover everything from cloth banners with the characteristics of the official flag, as defined by statute,[8] to ""any picture or representation"" of a flag, including ""posters, murals, pictures, [and] buttons""[9] And while a statute enacted pursuant to the amendment could attempt a limiting definition, it need not do so; the amendment would authorize as well a statute that simply prohibited desecration of ""any flag of the United States."" Again, such a statute would implicate the vagueness doctrine applied in Smith, and raise in any enforcement action the question whether the empowering amendment overrides due process guarantees.

Even if we are prepared to assume that the proposed amendment would operate on the First Amendment alone, important questions about the amendment's scope remain. Specifically, we still face the question whether the powers to be exercised under the amendment would be freed from all, or only some, First Amendment constraints, and, if the latter, how we will know which constraints remain applicable.

An example may help to illuminate the significance of this issue. In R.A.V. v. City of St. Paul,[10] decided in 1992, the Supreme Court held that even when the First Amendment permits regulation of an entire category of speech or expressive conduct, it does not necessarily permit the government to regulate a subcategory of the otherwise proscribable speech on the basis of its particular message. A government acting pursuant to the proposed amendment would be able to prohibit all flag desecration,[11] to but, if R.A.V. retains its force in this context, a government could not prohibit only those instances of flag desecration that communicated a particularly disfavored view; statutes making it a crime ‑ or an enhanced penalty offense ‑ to ""physically desecrate a flag of the United States in opposition to United States military actions,"" for instance, would presumably remain impermissible.

This result obtains, of course, if and only if the proposed amendment is understood to confer powers that are limited by the R.A.V. principle. If, on the other hand, the proposed amendment overrides the whole of the First Amendment, or overrides some select though unidentified class of principles within which R.A.V. falls, then there remains no constitutional objection to the hypothetical statute posited above. This is a distinction that makes a difference, as I hope this example shows, and it should be immensely troubling to anyone considering the amendment that its text leaves us with no way of knowing whether the rule of R.A.V. ‑‑ or any other First Amendment principle ‑ would limit governmental action if the amendment became part of the Constitution.

I will make only one last point with respect to the uncertain scope of the proposed amendment. It is possible that conferral of an undelineated power to cut into the Bill of Rights might be of lesser concern if Congress alone were so empowered. But it must be remembered that the amendment at issue here also grants the same power to fifty different states and an uncertain number of local governments. That raises, of course, the interpretive question of whether state legislatures acting under the amendment would remain bound by state constitutional free speech guarantees, or whether the proposed amendment would supersede state as well as federal constitutional provisions. On a more practical level, it increases, by at least fifty times, the risk that unduly restrictive or arbitrary legislation may be enacted at some point in the near or distant future, and it virtually guarantees a patchwork of very different state responses. Under these circumstances, Congress has a special obligation to make clear the dimensions of the power the amendment would confer.

II.

I have real doubts about whether these interpretive concerns could be resolved fully by even the most artful of drafting. In my view, any effort to constitutionalize an ""exception"" to the Bill of Rights necessarily will produce significant interpretive difficulties and uncertainty, as the courts attempt to reconcile a specific exception with the general principles that remain.[12] But even assuming, for the moment, that all of the interpretive difficulties of this amendment could be cured, it would remain an ill‑advised departure from a constitutional history marked by a deep reluctance to amend our most fundamental law.

The Bill of Rights was ratified in 1792. Since that time, over two hundred years ago, the Bill of Rights has never once been amended. And this is no historical accident, nor a product only of the difficulty of the amendment process itself. Rather, our historic unwillingness to tamper with the Bill of Rights reflects a reverence for the Constitution that is both entirely appropriate and fundamentally at odds with turning that document into a forum for divisive political battles.

The Framers themselves understood that resort to the amendment process was to be sparing and reserved for ""great and extraordinary occasions.""[13] In The Federalist Papers, James Madison warned against using the amendment process as a device for correcting every perceived constitutional defect ‑ a practice that could not help but undermine the role of the Supreme Court.[14] Of particular interest here, Madison objected especially to amendment on issues that inflamed public passion, fearing that such actions might threaten ""the constitutional equilibrium of the government.""[15] The proposed amendment cannot be reconciled with this fundamental and historic understanding of the integrity of the Constitution. I think perhaps Charles Fried, who served with distinction as Solicitor General under President Reagan, made the point best when he testified against a similar proposed amendment in 1990:

The flag, as all in this debate agree, symbolizes our nation, its history, its values. We love the flag because it symbolizes the United States; but we must love the Constitution even more, because the Constitution is not a symbol. It is the thing itself.[16]

III.

We come to this discussion at a time when peace among ourselves seems threatened, and national unity an elusive goal. The unity we seek, however, should be of the kind that is freely chosen, because that is the only kind that matters and the only kind that will endure. Americans are free today to display the flag respectfully, to ignore it entirely, or to use it as an expression of protest or reproach. By overwhelming numbers, Americans have chosen the first option, and display the flag proudly. And what gives this gesture its unique symbolic meaning is the fact that the choice is freely made, uncoerced by the government. Were it otherwise ‑ were, for instance, respectful treatment of the flag the only choice constitutionally available ‑ then the respect paid the flag by millions of Americans would mean something different and perhaps something less.

[1] Walter Dellinger is the Douglas B. Maggs Professor of Law at Duke University and a partner at O'Melveny & Myers, LLP. Mr. Dellinger presented similar testimony on this issue while serving as Assistant Attorney General in the Office of Legal Counsel at the United States Department of Justice.

[2] 491 U.S. 397 (1989).

[3] 496 U.S. 310 (1990).

[4] 141 Cong. Rec. 54275 (daily ed. Mar. 21, 1995).

[5] 415 U.S. 566 (1974).

[6] 415 U.S. at 574.

[7] Id. at 575.

[8] See 4 U.S.C. § 1.

[9] Measures to Protect the Physical Integrity of the American Flag: Hearings on S. 1338, H.R. 2978, and S.J. Res. 180 Before the Senate Comm. on the Judiciary, 101st Cong., 1st Sess. 82‑85 (1989) [""1989 Hearings""].

[10] 112 S. Ct. 2538 (1992).

[11] Even a statute that prohibited all flag desecration would be in tension with the principle of R.A.V. Although a few acts done with a flag could be considered a ""desecration"" in all contexts, that would not be the case with burning, for example. Only some burnings could be prohibited by statutes adopted under the proposed amendment. Respectful burning of the flag will remain legal after the amendment's adoption as before. See 36 U.S.C. § 176(k) (""The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning. ""). What may be prohibited is only that destruction of a flag that communicates a particular message, one of disrespect or contempt. The conclusion that a particular act of burning is a ""desecration"" may require in most instances consideration of the particular message being conveyed.

[12] For an earlier discussion of this problem in the context of a proposed Silent Prayer Amendment, see Walter Dellinger, The Sound of Silence: An Epistle on Prayer and the Constitution, 95 Yale L.J. 1631, 1644‑45 (1986).

[13] The Federalist No. 49, at 314 (James Madison) (Clinton Rossiter ed., 1961).

[14] See id. at 314.

[15] Id. at 315‑17. See also 1989 Hearings at 720‑23 (statement of Professor Henry Paul Monaghan, Columbia University School of Law).

[16] Proposing an Amendment to the Constitution Authorizing the Congress and the States to Prohibit the Physical Desecration of the American Flag: Hearing Before the Senate Comm. on the Judiciary, 101st Cong., 2d Sess. 110 (1990).