Testimony of David Skaggs concerning House Joint Resolution 33,
proposing an amendment to the United States Constitution
with regard to desecration of the flag of the United States,
before the Constitutional Law Subcommittee
of the Committee on the Judiciary,
United States House of Representatives,
March 23, 1999
Thank you, Mr. Chairman, for this opportunity to express my views on this proposed legislation. As you may recall, this is a matter about which I had strong views while a Member of the House. I still do, as a civilian. I urge you - in the name of freedom - to resist the temptation to send this bill to the House.
In a very real way, this is a debate about patriotism, about love of country. The amendment before you would impose an official orthodoxy on the expression of patriotism, prohibiting under penalty of criminal law a certain way of expressing love of country.
I suppose that may be a shocking way to put it. But, it's the truth. By passing this amendment, you presume to read the mind of dissenters in America - a scary proposition. You would say as a matter of law that the form of political expression embodied in flag desecration can only spring from evil and criminal intent, and therefore is the proper subject of the criminal law. You would admit of no possibility that such expression could come from legitimate motive, for surely, if it ever did, we would not ban it in the land of the free.
Now, for me, flag desecration is abhorrent. I would never choose that way of expressing myself. I love my country and its flag. I joined the Marine Corps in 1963 rather than worry about the draft. I asked for orders to Viet Nam - twice - because it seemed like the only thing to do, when all the men I trained with were going.
But I believed the war there was wrong. I was hugely conflicted between my sense of duty to the Marine Corps and my country, on the one hand, and my sense of what was right. I marched against the war before I went on active duty. I saw flags burned in protest over that war. Far be it from the flawed wisdom that any one of us possesses to say with enough certainty to amend the Constitution of the United States that those who protested that miserable, dirty war in that way did not love their country; that they did not hold their ideals about America so fervently that flag burning became a cry of desperation about how far their country had strayed from what they thought the flag stood for.
That was 30 years ago. Let's pray we are never again in a conflict that tears the country apart the way Viet Nam did. But we sit here this afternoon on the brink of war against Yugoslavia, and, in my view, on the verge of yet another default by this great body in fulfilling its constitutional responsibility under the war powers clause. Now that's something worth getting upset about! Congress's constitutional energies would be much better spent carrying out its own sacred duty to the American people to assert its power to decide about going to war, than to fret about the means of expression of those who disagree when we do.
I didn't have very tough duty in Viet Nam. I was no hero. I didn't have to kill any one. I did spend some time out in the beautiful and terrifying countryside West of DaNang. I did get shot at a couple of times. And I do remember the relief of getting back to base and seeing our flag flying proudly, a beacon of safety and an inspiration.
An inspiration. What an inspiration this great nation is! I was privileged to travel abroad as a Member of Congress, and everywhere I went, I was reminded over and over again of the power of our ideas and ideals. That was especially true in the nations of the former Soviet bloc. There, I heard so many times words of thanks to America for having kept hope alive during decades of repression and totalitarian efforts at thought control. Those words were spoken by an 80-year-old voter bicycling to the polls in a little village in East Germany, during the spring of 1990, where I was an observer in their first free elections since before Hitler. They were spoken in Russia and in Hungary and in Estonia and in Armenia.
So, now, as we share the joy of hundreds of millions around the world realizing for the first time the freedoms we have enjoyed so long, now, we would curtail our own freedoms, in the name of protecting the symbol of those freedoms. We in America, of all places, would suppress dissent! This is legislation that we might have expected from the Supreme Soviet, or from Castro's puppet Assembly, but not from the Congress of the United States of America.
This is a debate about patriotism. Can anything be more patriotic in this country than upholding the right of free expression of dissent? Have we forgotten the protests of our founders, fighting the Stamp Act?
Nothing is more central to the ability of this democracy to work than the free flow of information, argument, and, yes, dissent. Even dissent expressed in ways that may be offensive to me and you and most Americans. That's why the First Amendment is so unyielding in its terms. Which, of course, is the reason that we're here this afternoon, struggling to find a way to do what the courts have explained the First Amendment does not allow to be done.
So, you want to amend the First Amendment. How profoundly sad to sully that bulwark of our freedom -- to invite, with this revision, another and another. Don't do it. We are stronger than that. We are not threatened by the puny protest of one flag desecration every year or two. But we are threatened when the First Amendment becomes fair game for politics, when we take the first, insidious step down the path toward an orthodoxy of dissent, and a patriotism of compulsion - contradictions if there ever were ones.
Mr. Justice Holmes gave us these good words to live by this afternoon, before this afternoon becomes twilight for a portion of our liberty:
"We should be eternally vigilant against attempts to check the expression of opinions we loathe."
Thank you, Mr. Chairman.