James Sensenbrenner, June 5, 2003

For over 200 years, our nation's flag has been regarded as the most revered and beloved symbol of our great nation, representing all that is American and reminding the world of our undying love of freedom and democracy. Until recently, it was rightfully protected by the federal government and almost every single state without constitutional objection. But in 1989, the United States Supreme Court in Texas v. Johnson ruled in a narrow five to four opinion that burning the flag was expressive conduct protected by the First Amendment to the Constitution.

Shortly thereafter, Congress responded to this decision by enacting a federal statute to ban such conduct. But in another case, United States v. Eichman, the Supreme Court ruled that the congressional statute violated the Constitution, thus leaving Congress with no other alternative but to amend the Constitution in order to protect the American flag.

On June 3, by a vote of 300-125, the House passed an amendment to the United States Constitution which would provide Congress with the authority to prohibit the physical desecration of the American flag. H. J. Res. 4, which I supported, amends the Constitution with the words, "The Congress shall have power to prohibit the physical desecration of the flag of the United States." H. J. Res. 4 does not specifically outlaw flag desecration. Rather, it establishes the boundaries by which Congress can enact future implementing legislation, if it so chooses, to prohibit such conduct.

As we get ready to honor and celebrate Flag Day on June 14, we would do well to remember that, contrary to what opponents of H. J. Res 4 claim, it was the United States Supreme Court under the guise of the First Amendment that curtailed our constitutional rights and liberties as Americans by denying us the authority to protect our flag. Rights guaranteed under the First Amendment are not unlimited. Rather, Americans are constrained in their speech to a certain degree, and conduct that is arguably associated with speech has also always been validly regulated. For example, while someone seeking publicity or wanting to protest may think that the best method to convey a particular message would be to parade nude in front of Oconomowoc City Hall, this form of conduct is illegal.

H. J. Res. 4 will re-establish our right to protect our flag and restore the original understanding of the First Amendment and the Bill of Rights that had persisted since the very beginning of our country. The American flag is more than just an emblem or bumper sticker. It serves as a shining symbol of our principles and values as a country, leading our men and women into conflicts around the globe and draping the caskets of those same individuals when they return home after giving the ultimate sacrifice in defense of such values. It is the flag to which we pledge allegiance here in the halls of Congress and in schools throughout our country. It is this object and all that it represents that we as Americans hold so dear, and it is appropriate for it to be elevated to a level deserving protection.

James Sensenbrenner, Jr., is a Republican Member of Congress representing the Fifth Congressional District of Wisconsin. He chairs the House Judiciary Committee.