June 30th, 2003
<br />
The “Continuity of Government” Proposal- A Dangerous and<br />
Unnecessary Threat to Representative Rule<br />
The “Continuity of Government Commission” (COGC), spearheaded by the Brookings Institution and the American Enterprise Institute, recently issued proposals for the operation of Congress following a catastrophic terrorist attack. Specifically, COGC advocates a constitutional amendment calling for the appointment of individuals to the House of Representatives to fill the seats of dead or incapacitated members, a first in American history. An examination of the proposal reveals that it is both unnecessary and dangerous.
Note that COGC is “self-commissioned,” its members being neither elected nor appointed by any government body. The biographies of the commissioners demonstrate that COGC is made up mostly of professional lobbyists. Of course COGC is well-intentioned, but the nation should know exactly who is trying to substitute their wisdom for that of James Madison, Alexander Hamilton, and other framers of the Constitution. I think most Americans would prefer that proposals to amend the Constitution come from elected lawmakers or grassroots efforts, not from think tanks and lobbyists.
One reading the COGC proposal cannot help but sense the familiar Washington conceit at work, a conceit that sees America as totally dependent on the workings of Capitol Hill. It is simply unthinkable to many in Washington that the American people might survive a period in which Congress did not pass any new laws. But the truth is that the federal state is not America. The American people have always been remarkably resilient in the face of emergencies, and individual states are far more equipped to deal with emergencies and fill congressional vacancies than COGC imagines.
COGC is Unnecessary
Every generation seems to labor under the delusion that it lives in the most dangerous and turbulent time in human history. COGC certainly proves this point. Its proposal provides doomsday scenarios designed to make us believe that the threat of modern terrorism poses a much greater risk to our government institutions than ever existed in the past. Yet is Congress really more vulnerable than it was at the height of the Cold War, when a single Soviet missile could have destroyed Washington? Surely Congress faced greater danger in 1814, when the British army actually invaded Washington, routed the city, and burned down the White House! Somehow the republic survived those much more perilous times without a constitutional amendment calling for the emergency appointment of Representatives.
The scenarios offered by the commission, while theoretically possible, are highly unlikely to disable Congress. Remember, a majority of members assemble together in one place only rarely; even during votes most members are not on the floor together at the same time Inauguration ceremonies and State of the Union addresses often bring together a majority of members in the same place, but simple precautions could be taken to keep a sufficient number away from such events. Even a direct terrorist attack on the Pentagon failed to disrupt the operation of the Department of Defense. The COGC proposal exaggerates the likelihood that a terrorist strike on Washington would incapacitate the House of Representatives, and exaggeration is a bad reason to amend the Constitution.
Existing Constitutional Provisions are Adequate
It is important to understand that the Constitution already provides the framework for Congress to function after a catastrophic event. Article I section 2 grants the governors of the various states authority to hold special elections to fill vacancies in the House of Representatives. Article I section 4 gives Congress the authority to designate the time, manner, and place of such special elections if states should fail to act expeditiously following a national emergency. As Hamilton explains in Federalist 59, the “time, place, and manner” clause was specifically designed to address the kind of extraordinary circumstances imagined by COGC. Hamilton characterized authority over federal elections as shared between the states and Congress, with neither being able to control the process entirely.
COGC posits that states could not hold special elections quickly enough after a terrorist act to guarantee the functioning of Congress. But even COGC reports that the average length of House vacancies, following the death of a member until the swearing in of a successor after a special election, is only 126 days. Certainly this period could be shortened given the urgency created by a terrorist attack. We should not amend the Constitution simply to avoid having a reduced congressional body for a month or two.
In fact, Congress often goes months without passing significant legislation, and takes long breaks in August and December. If anything, legislation passed in the aftermath of a terrorist event is likely to be based on emotion, not reason. The terrible Patriot Act, passed only one month after September 11 th by a credulous Congress, is evidence of this.
Also, advances in technology can be used to reduce the risk of a disruption in congressional continuity following an emergency. Members already carry Blackberry devices to maintain communications even if cut off from their offices. Similar technology can be used to allow remote electronic voting by members. Congress should focus on contingency plans that utilize technology, not a constitutional amendment.
States have a wide variety of electronic and telephonic technology at their disposal to speed up the process of special elections. Consider that popular television shows hold votes that poll millions of Americans in a single night! Yet COGC ignores alternatives to standard voting and incorrectly assumes that states will be in disarray and unable to hold elections for months.
At its heart, the COGC proposal is fundamentally at odds with the right of the people always to elect their members of the House of Representatives. The House must be elected. Even “temporary” appointees would be unacceptable, because the laws passed would be permanent.
The problems with appointment of “representatives” are obvious. COGC calls for a general constitutional amendment that gives Congress wide power to make rules for filling vacancies “in the event that a substantial number of members are killed or incapacitated. “Such an amendment would be unavoidably vague, open to broad interpretation and abuse. In defining terms like “vacancy,” “substantial,” and “incapacitated,” Congress or the courts would be setting a dangerous precedent for a more elastic constitutional framework. Members of Congress simply cannot appoint their colleagues; the conflict of interest is glaring.
Alternate proposals allowing state governors to appoint representatives from a list of successors nominated by members are no better. The House of Representatives represents the people, not the states. Single states often exhibit wide variations in political makeup even among voters of the same party. Appointment by governors, even though the successors represent the dead member’s party choice, could change the ideological composition of Congress contrary to the will of the people. Furthermore, voters choose an individual candidate, not a panel. They should not be required to consider the qualifications of a candidate’s potential successors.
COGC focuses on government legitimacy, arguing that a House of Representatives with only a handful of surviving members would not be seen as legitimate by the public. In fact the opposite is true: appointed “representatives” will never be seen as legitimate and in fact would not be legitimate. Without exception, every member of the House of Representatives has been elected by voters in the member’s district. Madison states in Federalist 52 that “The definition of the right of suffrage is very justly regarded as a fundamental article of republican government. “The very legitimacy of the House of Representatives is based on its constitutional status as the most directly accountable federal body.
The House passes numerous laws, often by voice vote, with very few members present. The legitimacy of those laws is not called into question. Even a House made up of only five elected members would have more legitimacy, as the living continuation of the only elected entity in government, than a House composed of five surviving members and 430 appointees. Furthermore, even a decimated House membership would have to pass legislation with the concurrence of the Senate, which could be restored to full strength immediately by state governors.
Consider a scenario COGC forgot to mention. Imagine a terrorist strike kills a majority of members of the House of Representatives. 200 members survive, and 235 are appointed by state governors on a “temporary basis. “This new body considers a bill that drastically increases taxes to pay for emergency measures, while suspending civil liberties and imposing martial law. The bill passes, with 195 elected members opposed and all 235 appointed members in favor. Only 5 elected members support the measure. Would the electorate consider this legislation legitimate? Hardly. Yet this is the type of outcome we must expect under the COGC proposal.
Conclusion
To quote Professor Charles Rice, a distinguished Professor Emeritus at Notre Dame Law School: “When it is not necessary to amend the Constitution, it is necessary not to amend the Constitution.” We must not allow the understandable fears and passions engendered by the events of September 11 th to compel a rushed and grievous injury to our system of government.The Constitution is our best ally in times of relative crisis; it is precisely during such times we should hold to it most dearly. Rather than amending the Constitution, Congress should be meeting to discuss how to preserve our existing institutions- including an elected House- in the event of a terrorist attack.The Constitution already provides us with the framework, while technology gives states the ability organize elections quickly. The COGC proposal not only makes a mountain out of a molehill, but also acutely threatens the delicate balance of federal power established in the Constitution.
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June 25th, 2003
As the House of Representative debates a Medicare prescription drug bill this week, Congressman Ron Paul responded to efforts by the pharmaceutical industry to block changes that would lower the cost of medicine for millions of Americans. Paul strongly supports changes to FDA regulations that would allow prescription drugs to be reimported from foreign countries, where widely-used drugs often sell for much less than in the U.S. Paul, a medical doctor for nearly 40 years, is an advocate of innovative market-based solutions to rising drug costs. He is a member of the House Caucus for Affordable Pharmaceuticals, which seeks to eliminate rules and regulations that benefit drug companies at the expense of consumers.
“Drug reimportation is critical to lowering prices,” Paul stated. “Reimportation allows American consumers, particularly seniors, to benefit from worldwide price competition. It’s outrageous that the FDA does not permit U.S. citizens to reimport drugs that sell for 30 to 300 percent less outside our borders. The pharmaceutical companies should not be allowed to profit by this government-enforced price fixing. How much longer should American consumers be expected to pay much higher prices for identical drugs available in Europe, Canada, and Mexico for a fraction of the cost?”
Paul supports tax credits for seniors to offset the cost of needed medicines, and medical savings accounts to allow tax-free savings to be used to pay for prescriptions. He also supports legislation that streamlines the FDA approval process to make promising new drugs available more quickly.
“Government red tape is a major culprit in rising drug costs,” Paul concluded. “Congress needs to end subsidies to the pharmaceutical and insurance industries, cut unnecessary FDA regulations, and repeal rules that stifle price competition.”
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June 25th, 2003
<br />
Does Tony Blair Deserve a Congressional Medal?<br />
Mr. Speaker, I rise in strong opposition to this legislation for a number of reasons. First, forcing the American people to pay tens of thousands of dollars to give a gold medal to a foreign leader is immoral and unconstitutional. I will continue in my uncompromising opposition to appropriations not authorized within the enumerated powers of the Constitution- a Constitution that each member of Congress swore to uphold.
Second, though these gold medals are an unconstitutional appropriation of American tax dollars, at least in the past we have awarded them to great humanitarians and leaders like Mother Theresa, President Reagan, Pope John Paul II, and others. These medals generally have been proposed to recognize a life of service and leadership, and not for political reasons - as evidenced by the overwhelming bi-partisan support for awarding President Reagan, a Republican, a gold medal. These awards normally go to deserving individuals, which is why I have many times offered to contribute $100 of my own money, to be matched by other members, to finance these medals.
I sense that this current proposal is different, however. No one is claiming that British Prime Minister Tony Blair has given a lifetime of humanitarian service like Mother Theresa, or demonstrated the historical leadership of a Ronald Reagan. No one suggests the British Prime Minister, leading the avowedly socialist Labour Party, has embraced American values such as freedom and limited government, as Margaret Thatcher attempted before him. No, Tony Blair is being given this medal for one reason: he provided political support when international allies were sought for America’s attack on Iraq. Does this overtly political justification not cheapen both the medal itself and the achievements of those who have been awarded it previously?
I find it particularly unfortunate that the Republican-controlled Congress would nominate Tony Blair to receive this award. His political party is socialist: Britain under Blair has a system of socialized medicine and government intervention in all aspects of the commercial and personal lives of its citizens. Socialism is an enemy of freedom and liberty - as the 20 th century taught us so well. It is the philosophical basis for a century of mass-murder and impoverishment.
In May, a British television poll found that Prime Minister Blair is the most unpopular man in Great Britain. A brief look at his rule leaves little question why this is so. He has eroded Britain’s constitutional base- recently abolishing the ancient position of Lord Chancellor without any debate. He has overseen a huge expansion of government, with the creation of costly “assemblies” in Wales and Scotland. He also has overseen changes in Britain’s voting system that many believe open the door to widespread voting fraud. In short, he is no Margaret Thatcher and certainly no Winston Churchill. Yet today Congress is voting to give him its highest honor.
Mr. Speaker, it is very easy to be generous with other people’s money. I believe the politicization of this medal, as we are seeing here today, really makes my own point on such matters: Congress should never spend tax money for appropriations not authorized within the enumerated powers of the Constitution. When it does so, it charts a dangerous course away from the rule of law and away from liberty. I urge a “No” vote on this unfortunate bill.
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June 12th, 2003
Washington, DC: Congressman Ron Paul today welcomed the announcement of two port security grants from the Department of Homeland Security (DHS). The grants, totaling more than two million dollars, will help strengthen security at Port Freeport and surrounding areas.
“I’m glad DHS has finally recognized the importance of our nation’s ports,” Paul stated. “The federal government has spent billions federalizing airport security and issuing useless color-coded warnings, but virtually ignored our ports and borders. The recent tragedy in Victoria show just how porous our borders really are; we should not allow our ports to stand equally unprotected. National defense- especially defense of our borders- is one of the federal government’s most basic duties, yet for too long administrations have ignored the need to secure our ports and waterways. Ports are at least equal in importance to border crossings as points of entry not only for goods, but people as well.”
“Port security must be maintained in a way that allows business to run smoothly,” Paul added. “I believe the management of the port, like the management of the large refineries in the area, can guard against terrorism without hampering business. With an emphasis on local control, Port Freeport can be secure without imposing undue delays and costs on businesses that use the port.”
“Texas sends far more money to Washington in federal taxes than it receives in services,” Paul concluded. “I fight against wasteful government spending, but I do believe in directing as many federal dollars back to Texas as possible. I’m glad these dollars are being returned to the Freeport area.”
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June 4th, 2003
<br />
The Partial Birth Abortion Ban<br />
Mr. Speaker, like many Americans, I am greatly concerned about abortion. Abortion on demand is no doubt the most serious sociopolitical problem of our age. The lack of respect for life that permits abortion significantly contributes to our violent culture and our careless attitude toward liberty. As an obstetrician, I know that partial birth abortion is never a necessary medical procedure. It is a gruesome, uncivilized solution to a social problem.
Whether a civilized society treats human life with dignity or contempt determines the outcome of that civilization. Reaffirming the importance of the sanctity of life is crucial for the continuation of a civilized society. There is already strong evidence that we are indeed on the slippery slope toward euthanasia and human experimentation. Although the real problem lies within the hearts and minds of the people, the legal problems of protecting life stem from the ill-advised Roe v. Wade ruling, a ruling that constitutionally should never have occurred.
The best solution, of course, is not now available to us. That would be a Supreme Court that recognizes that for all criminal laws, the several states retain jurisdiction. Something that Congress can do is remove the issue from the jurisdiction of the lower federal courts, so that states can deal with the problems surrounding abortion, thus helping to reverse some of the impact of Roe v. Wade.
Unfortunately, H.R. 760 takes a different approach, one that is not only constitutionally flawed, but flawed in principle, as well. Though I will vote to ban the horrible partial-birth abortion procedure, I fear that the language used in this bill does not further the pro-life cause, but rather cements fallacious principles into both our culture and legal system.
For example, 14G in the “Findings” section of this bill states, “…such a prohibition [upon the partial-birth abortion procedure] will draw a bright line that clearly distinguishes abortion and infanticide…” The question I pose in response is this: Is not the fact that life begins at conception the main tenet advanced by the pro-life community?By stating that we draw a “bright line” between abortion and infanticide, I fear that we simply reinforce the dangerous idea underlying Roe v. Wade, which is the belief that we as human beings can determine which members of the human family are “expendable,” and which are not.
Another problem with this bill is its citation of the interstate commerce clause as a justification for a federal law banning partial-birth abortion. This greatly stretches the definition of interstate commerce. The abuse of both the interstate commerce clause and the general welfare clause is precisely the reason our federal government no longer conforms to constitutional dictates but, instead, balloons out of control in its growth and scope. H.R. 760 inadvertently justifies federal government intervention into every medical procedure through the gross distortion of the interstate commerce clause.
H.R. 760 also depends heavily upon a “distinction” made by the Court in both Roe v. Wade and Planned Parenthood v. Casey, which establishes that a child within the womb is not protected under law, but one outside of the womb is. By depending upon this illogical “distinction,” I fear that H.R. 760, as I stated before, ingrains the principles of Roe v. Wade into our justice system, rather than refutes them as it should.
Despite its severe flaws, this bill nonetheless has the possibility of saving innocent human life, and I will vote in favor of it. I fear, though, that when the pro-life community uses the arguments of the opposing side to advance its agenda, it does more harm than good.
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June 4th, 2003
<br />
Pro-Life Action Must Originate from Principle<br />
As an obstetrician who has delivered over 4000 children, I have long been concerned with the rights of unborn people. I believe this is the greatest moral issue of our time. The very best of the western intellectual tradition has understood the critical link between moral and political action. Each of these disciplines should strongly inform and support the other.
I have become increasingly concerned over the years that the pro-life movement I so strongly support is getting further off track, both politically and morally. I sponsored the original pro-life amendment, which used a constitutional approach to solve the crisis of federalization of abortion law by the courts. The pro-life movement was with me and had my full support and admiration.
Those who cherish unborn life have become frustrated by our inability to overturn or significantly curtail Roe v. Wade. Because of this, attempts were made to fight against abortion using political convenience rather than principle. There is nothing wrong per se with fighting winnable battles, but a danger exists when political pragmatism requires the pro-life movement to surrender important moral and political principles.
When we surrender constitutional principles, we do untold damage to the moral underpinnings on which our Constitution and entire system of government rest. Those underpinnings are the inalienable right to life, liberty, and property. Commenting upon the link between our most important rights, Thomas Jefferson said “The God which gave us life gave us at the same time liberty. The hands of force may destroy but can never divide these.”
M. Stanton Evans further explained the link between our form of government and the rights it protects when he wrote, “The genius of the Constitution is its division of powers-summed up in that clause reserving to the several states, or the people, all powers not expressly granted to the federal government.”
Pro-lifers should be fiercely loyal to this system of federalism, because the very same Constitution that created the federal system also asserts the inalienable right to life. In this way, our constitutional system closely links federalism to the fundamental moral rights to life, liberty, and property. For our Founders it was no exaggeration to say federalism is the means by which life, as well as liberty and property, are protected in this nation. This is why the recent direction of the pro-life cause is so disturbing.
Pro-life forces have worked for the passage of bills that disregard the federal system, such as the Unborn Victims of Violence Act, the federal cloning ban, and the Child Custody Protection Act. Each of these bills rested on specious constitutional grounds and undermined the federalism our Founders recognized and intended as the greatest protection of our most precious rights.
Each of these bills transfers to the federal government powers constitutionally retained by the states, thus upsetting the separation and balance of powers that federalism was designed to guarantee. To undermine federalism is to indirectly surrender the very principle upon which the protection of our inalienable right to life depends.
The worst offender of federalism is the so-called Unborn Victims of Violence Act, which not only indirectly surrenders the pro-life principle but actually directly undercuts the right to life by granting a specific exemption to abortionists ! This exemption essentially allows some to take life with the sanction of federal law. By supporting this legislation, pro-lifers are expressly condoning a legal exemption for abortionists- showing just how far astray some in the pro-life community have gone.
Even the Partial Birth Abortion Ban Act, which is an integral part of the current pro-life agenda, presents a dilemma. While I have always supported this Act and plan to do so in the future, I realize that it raises questions of federalism because authority over criminal law is constitutionally retained by the states. The only reason a federal law has any legitimacy in this area is that the Supreme Court took it upon itself to federalize abortion via Roe v. Wade. Accordingly, wrestling the abortion issue from the federal courts and putting it back in the hands of the elected legislature comports with the Founder’s view of the separation of powers that protects our rights to life, liberty, and property.
Given these dilemmas, what should those of us in the pro-life community do? First, we must return to constitutional principles and proclaim them proudly. We must take a principled approach that recognizes both moral and political principles, and accepts the close relationship between them. Legislatively, we should focus our efforts on building support to overturn Roe v. Wade. Ideally this would be done in a fashion that allows states to again ban or regulate abortion. State legislatures have always had proper jurisdiction over issues like abortion and cloning; the pro-life movement should recognize that jurisdiction and not encroach upon it. The alternative is an outright federal ban on abortion, done properly via a constitutional amendment that does no violence to our way of government.
If the next version of the Partial Birth Abortion Ban act reads like past versions in the House, I will likely support it despite the dilemmas outlined here. I cannot support, however, a bill like the proposed Senate version of the Partial Birth Abortion Ban that reaffirms Roe v. Wade.
For the pro-life cause to truly succeed without undermining the very freedoms that protect life, it must return to principle and uphold our Founder’s vision of federalism as an essential component of the American system. Undermining federalism ultimately can only undermine the very mechanism that protects the right to life.
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June 4th, 2003
<br />
Let’s Keep All Representatives Elected<br />
Mr. PAUL. Mr. Speaker, the privately funded and privately constituted “Continuity of Government Commission” has recently proposed that, for the first time in our nation’s history, we should allow the appointment of members of the U.S. House of Representatives. Not only does this proposal fail to comport with the intention of the founders of this nation, but even worse, it advocates a solution that has been repeatedly rejected by this body.
The report of this so-called “Commission” makes clear that while the Senate has, from time to time, voted to pass constitutional amendments allowing for the appointment of House members, this body has always jealously guarded its status as “the people’s House” by failing to pass such amendments. A brief history review may be in order at this point. First, our Nation has been under attack from foreign powers in the past, such as in its nascent years when the British were constantly “coming” In our own century, we faced an attack on Pearl Harbor as well as the very real threat of nuclear annihilation. Now, because we have learned that our Capitol was a potential target in a terror plot, there is an outcry from some corners regarding our vulnerability. Our government leaders are no more vulnerable today to mass extinction than they were 20 years ago. Our top-flight military makes us, in many ways, less vulnerable to attack and the assassination of our leaders than we were 200 years ago.
Even if we were to sustain such a devastating attack, the nightmare scenario painted in the first report of the “commission” is not only far-fetched, but also admits of a plethora of potential solutions already existent in our current constitutional structure. Though the report endeavors to cast doubt on the legitimacy of those structures, it is unsuccessful. Moreover, what could be more offensive to our republican form of government and of more questionable legitimacy, than to have a slew of un-elected “representatives” outvote elected people on the floor of our U.S. House?
Let’s face it: we can scare people and doom-say anytime we wish, but it would only be in the case of a near-complete annihilation that our government would fail to function. In such an instance there is no “system” that will preserve our government. On the other hand, if we surrender the right to elect people to the U.S. House of Representatives under any circumstances, we will be on a slippery slope away from the few remaining vestiges and most precious principles of the government left to us by our founders.
In the event that this “proposal” gets more serious and is given long-term attention, I will place in the record more detailed statements defending the notion of an all-elected House of Representatives, and explaining the fallacies and illogic found in this report. For now Mr. Speaker, I simply wish to go on record as among those who would fight to the last to preserve the principle of a House of Representatives consisting entirely of members elected by the people.
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June 3rd, 2003
<br />
The Flag Burning Amendment<br />
Mr. Speaker, I rise in support of the rule, although unenthusiastically. I am not too excited about this process, and certainly I am not very excited about this proposal to amend the Constitution. As for my viewpoint, I see the amendment as very unnecessary and very dangerous. I want to make a few points along those lines.
It has been inferred too often by those who promote this amendment that those who oppose it are less patriotic, and I think that is unfair. And an earlier statement was made by the gentleman from Florida that everybody here is patriotic and nobody’s patriotism should be challenged.
It has also been said that if one does not support this amendment to the flag that they are disloyal to the military, and that cannot possibly be true. I have served 5 years in the military, and I do not feel less respectful of the military because I have a different interpretation on how we should handle the flag. But nevertheless, I think what we are doing here is very serious business because it deals with more than just the flag.
First off, I think what we are trying to achieve through an amendment to the Constitution is to impose values on people- that is, teach people patriotism with our definition of what patriotism is. But we cannot force values on people; we cannot say there will be a law that a person will do such and such because it is disrespectful if they do not, and therefore, we are going to make sure that people have these values that we want to teach. Values in a free society are accepted voluntarily, not through coercion, and certainly not by law, because the law implies that there are guns, and that means the federal government and others will have to enforce these laws.
Here we are, amending the Constitution for a noncrisis. How many cases of flag burning have we seen? I have seen it on television a few times in the last year, but it was done on foreign soil, by foreigners, who had become angry at us over our policies, but I do not see that many Americans in the streets burning up flags. There were probably a lot more in previous decades, but in recent years it averages out to about eight, about eight cases a year, and they are not all that horrendous. It involves more vandalism, teenagers taking flags and desecrating the flag and maybe burning it, and there are local laws against that.
This is all so unnecessary. There are already laws against vandalism. There are state laws that say they cannot do it and they can be prosecuted. So this is overkill.
As a matter of fact, the Supreme Court has helped to create this. I know a lot of people depend on the Supreme Court to protect us, but in many ways, I think the Supreme Court has hurt us. So I agree with those who are promoting this amendment that the Supreme Court overreacted, because I think the States should have many more prerogatives than they do. Many states have these laws, and I believe that we should have a Supreme Court that would allow more solutions to occur at the state level. They would be imperfect, no doubt, it would not be perfect protection of liberty by state laws. But let me tell my colleagues, when we come here as politicians and superpatriots and we pass amendments to the Constitution, that will be less than perfect, then it will be just like the Supreme Court- a poor national solution.
It is a ruling for everyone, and if we make a mistake, it affects everybody in every state, and that is what I am afraid we are doing here.
The First Amendment has been brought up on several occasions, and I am sure it will be mentioned much more in general debate. This amendment does not directly violate the First Amendment, but what it does, it gives Congress the authority to write laws that will violate the First Amendment, and this is where the trouble is. Nothing but confusion and litigation can result.
Mr. Speaker, I do not believe much good will come of it. A lot of good intentions are put into the effort, but I see no real benefit.
It was mentioned earlier that those who supported campaign finance laws were inconsistent. And others would say that we do not have to worry about the First amendment when we are dealing with the flag amendments. But I would suggest there is another position. Why can we not be for the First amendment when it comes to campaign finance reform and not ask the government to regulate the way we spend our money and advertise, while at the same time supporting the First amendment here?
It seems that consistency is absent in this debate.
It is said by the chairman of the committee that he does not want to hear much more about the First amendment. We have done it before, so therefore it must be okay. But we should not give up that easily.
He suggested that we have amended the Constitution before when the courts have ruled a certain way. And he is absolutely right, we can do that and we have done that. But to use the 16th amendment as a beautiful example of how the Congress solves problems, I would expect the same kind of dilemma coming out of this amendment as we have out of the 16th amendment which, by the way, has been questioned by some historians as not being correctly ratified.
I think one of our problems has been that we have drifted away from the rule of law, we have drifted away from saying that laws ought to be clear and precise and we ought to all have a little interpretation of the laws.
The gentleman earlier had said that there are laws against slander so therefore we do violate the First amendment. Believe me, I have never read or heard about a legislative body or a judge who argued that you can lie and commit fraud under the First amendment. But the First amendment does say “Congress shall write no laws.” That is precise. So even the laws dealing with fraud and slander should be written by the States. This is not a justification for us to write an amendment that says Congress shall write laws restricting expression through the desecration of the flag.
This amendment, as written so far, does not cause the conflict. It will be the laws that will be written and then we will have to decide what desecration is and many other things.
Earlier in the debate it was said that an individual may well be unpatriotic if he voted against a Defense appropriation bill. I have voted against the Defense appropriation bill because too much money in the Defense budget goes to militarism that does not really protect our country. I do not believe that is being unpatriotic.
Mr. Speaker, let me summarize why I oppose this Constitutional amendment. I have myself served 5 years in the military, and I have great respect for the symbol of our freedom. I salute the flag, and I pledge to the flag. I also support overriding the Supreme Court case that overturned State laws prohibiting flag burning. Under the Constitutional principle of federalism, questions such as whether or not Texas should prohibit flag burning are strictly up to the people of Texas, not the United States Supreme Court. Thus, if this amendment simply restored the state’s authority to ban flag burning, I would enthusiastically support it.
However, I cannot support an amendment to give Congress new power to prohibit flag burning. I served my country to protect our freedoms and to protect our Constitution. I believe very sincerely that today we are undermining to some degree that freedom that we have had all these many years.
Mr. Speaker, we have some misfits who on occasion burn the flag. We all despise this behavior, but the offensive conduct of a few does not justify making an exception to the First amendment protections of political speech the majority finds offensive. According to the pro-flag amendment Citizens Flag Alliance, there has been only 16 documented cases of flag burning in the last two years, and the majority of those cases involved vandalism or some other activity that is already punishable by local law enforcement!
Let me emphasize how the First Amendment is written, “Congress shall make no law.” That was the spirit of our Nation at that time: “Congress shall make no laws.”
Unfortunately, Congress has long since disregarded the original intent of the Founders and has written a lot of laws regulating private property and private conduct. But I would ask my colleagues to remember that every time we write a law to control private behavior, we imply that somebody has to arrive with a gun, because if you desecrate the flag, you have to punish that person. So how do you do that? You send an agent of the government, perhaps an employee of the Bureau of Alcohol, Tobacco and Flags, to arrest him. This is in many ways patriotism with a gun- if your actions do not fit the official definition of a “patriot,” we will send somebody to arrest you.
Fortunately, Congress has models of flag desecration laws. For example, Saddam Hussein made desecration of the Iraq flag a criminal offense punishable by up to 10 years in prison.
It is assumed that many in the military support this amendment, but in fact there are veterans who have been great heroes in war on both sides of this issue. I would like to quote a past national commander of the American Legion, Keith Kreul. He said:
“Our Nation was not founded on devotion to symbolic idols, but on principles, beliefs and ideals expressed in the Constitution and its Bill of Rights. American veterans who have protected our banner in battle have not done so to protect a golden calf. Instead, they carried the banner forward with reverence for what it represents, our beliefs and freedom for all. Therein lies the beauty of our flag. A patriot cannot be created by legislation.”
Secretary of State, former Chairman of the Joint Chiefs, and two-time winner of the Presidential Medal of Freedom, Colin Powell has also expressed opposition to amending the constitution in this manner:
“I would not amend that great shield of democracy to hammer out a few miscreants. The flag will be flying proudly long after they have slunk away.”
Mr. Speaker, this amendment will not even reach the majority of cases of flag burning. When we see flag burning on television, it is usually not American citizens, but foreigners who have strong objections to what we do overseas, burning the flag. This is what I see on television and it is the conduct that most angers me.
One of the very first laws that Red China passed upon assuming control of Hong Kong was to make flag burning illegal. Since that time, they have prosecuted some individuals for flag burning. Our State Department keeps records of how often the Red Chinese persecute people for burning the Chinese flag, as it considers those prosecutions an example of how the Red Chinese violate human rights. Those violations are used against Red China in the argument that they should not have most-favored-nation status. There is just a bit of hypocrisy among those members who claim this amendment does not interfere with fundamental liberties, yet are critical of Red China for punishing those who burn the Chinese flag.
Mr. Speaker, this is ultimately an attack on private property. Freedom of speech and freedom of expression depend on property. We do not have freedom of expression of our religion in other people’s churches; it is honored and respected because we respect the ownership of the property. The property conveys the right of free expression, as a newspaper would or a radio station. Once Congress limits property rights, for any cause, no matter how noble, it limits freedom.
Some claim that this is not an issue of private property rights because the flag belongs to the country. The flag belongs to everybody. But if you say that, you are a collectivist. That means you believe everybody owns everything. So why do American citizens have to spend money to obtain, and maintain, a flag if the flag is community owned? If your neighbor, or the Federal Government, owns a flag, even without this amendment you do not have the right to go and burn that flag. If you are causing civil disturbances, you are liable for your conduct under state and local laws. But this whole idea that there could be a collective ownership of the flag is erroneous.
Finally, Mr. Speaker, I wish to point out that by using the word “desecration,” which is traditionally reserved for religious symbols, the authors of this amendment are placing the symbol of the state on the same plane as the symbol of the church. The practical effect of this is to either lower religious symbols to the level of the secular state, or raise the state symbol to the status of a holy icon. Perhaps this amendment harkens back to the time when the state was seen as interchangeable with the church. In any case, those who believe we have “No king but Christ” should be troubled by this amendment.
We must be interested in the spirit of our Constitution. We must be interested in the principles of liberty. I therefore urge my colleagues to oppose this amendment. Instead, my colleagues should work to restore the rights of the individual states to ban flag burning, free from unconstitutional interference by the Supreme Court.
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