< Return To Hearing
Maj. Gen. Patrick Brady
March 10, 2004
Maj. Gen. Patrick H. Brady, US Army (Ret.)
The Citizens Flag Alliance, Inc.
Senate Joint Resolution 4
The Hatch-Feinstein Flag Protection Constitutional Amendment
The Citizens Flag Alliance, Inc.
My name is Pat Brady. On behalf of the Citizens Flag Alliance, I thank you for hearing us.
The Citizens Flag Alliance, Inc., is a coalition of organizations that have come together for one purpose: the passage of a constitutional amendment that will return to the people the right to protect their flag.
More than 140 organizations make up the CFA, with collective membership around 20 million. Drawing its strength from grassroots activism, the CFA is organized in every state.
Membership is open to and includes fraternal, ethnic, civic, veteran organizations, corporations, and businesses by application. Everyone who donates to the CFA, or signs a petition supporting passage of the amendment, becomes an individual member. Although it is hoped that member organizations would donate to the CFA as funds are available, there is no fee to belong, but it is expected that:
In 1989 the Supreme Court, in response to a flag burning by a communist, amended the Constitution by inserting flag burning into the Bill of Rights. Their decision took away a fundamental right of the American people, a right we possessed since our birth as a nation, the right to protect our flag. We believe that decision was an egregious error and distorted our Constitution. We do not believe the freedom to burn the American flag is a legacy of the freedoms bestowed on us by Madison and Jefferson and Washington and the other architects of our Constitution. To distort the work of these great men unable to defend themselves, to put flag burning side by side with pornography as protected speech, is outrageous.
We believe that some elements in our society seek to amend the Constitution through the courts out of the bright light of the public square where they would surely fail. The ACLU has said they are the guardians of the Constitution and that their hope for their agenda is through the courts. We believe that our hope is in the Constitution as defined by our Founding Fathers and that we the people are the guardians of the Constitution. One judge said the Constitution is what the courts say it is! We believe the Constitution is what the Founding Fathers said it was and it cannot be amended without the will of the people.
President Lincoln warned, "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers." Abraham Lincoln also warned, "Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties."
The Courts are interfering with the Constitution; they are systematically amending it in violation of the Constitution itself. A few of many examples: They have declared the Pledge and the display of the Decalogue unconstitutional, overthrowing our right to acknowledge God as defined in the Declaration and protected by the First Amendment; they are proselytizing sodomy and promiscuity, redefining marriage, protecting child pornography and imposing racial quotas. Whatever one may think of the issues involved, these actions are not sanctioned for the courts to decide by the Constitution - they belong to the people to decide.
Many Americans have raised their right hand and sworn an oath to protect and defend the Constitution from all enemies, both foreign and domestic. We believe that all Americans who put their right hand over their heart and recite the Pledge take that same oath. Both the oath and the pledge are taken in the presence of Old Glory to emphasize that our flag is the symbol of our Constitution. We believe that we the people must exercise our right to rule by insuring that the Court's decision on flag burning is not irrevocably fixed.
We believe that legalizing flag burning, in addition to disfiguring the Constitution, also raises values issues and questions the kind of people we have been and want to be. We believe that our laws should reflect our values. Flag burning is not a value of the American people.
We believe the highest form of patriotism is service to our children and a premier worth of respect for the flag is the values it teaches our children, the values embedded in our Constitution as embodied by Old Glory. We agree with Pearl Buck who describes how precious a symbol the flag is to the treasure that is our children and how important it is to their development. She said, "Children are our national treasure. With what measure we mete to them in their childhood, they will mete to our nation in their lifetime." We believe our children should be raised as patriots full of respect for the flag and the constitutional values it represents. How can they respect something they are free to burn?
We believe symbols are indispensable in a democracy. They have been called the natural speech of the soul. Our gratitude for the great bounty that is America is expressed through symbols: grave stones, obelisks, walls and the greatest of all symbols, Old Glory. The word "symbol" is from the Greek meaning a half token, which when united with its other half identified the owner. It is meant to recognize something far more elaborate than itself. That something, the other half token of the flag, is the Constitution and we the people are the owners. September 11 reminded all Americans of what veterans have always known: the unifying, comforting and inspirational magic of Old Glory, its unique and indispensable value to our society.
Thomas Jefferson said, "Democracy is cumbersome, slow and inefficient, but in time the voice of the people will be heard and their latent wisdom will prevail." We believe that all Americans, once they realize that our Constitution was never intended to include flag burning, will be outraged, energized and mobilized against those who deliberately or inadvertently despoil that cherished document. We believe that if we persevere, eventually the voice of the people will be heard and our Constitution will be restored. The courts are forcing us to accept flag burning. We are not trying to force the people to love Old Glory. We are trying to force the courts to restore the truth to our Constitution.
We believe our battle for our flag is a battle for our Constitution. Our concern is not those who desecrate the flag; our concern is those who desecrate our Constitution by calling flag burning "speech." If we did not act on our belief, and correct the errors of the Court, we would violate our oath and our pledge. We would be cowards not worthy of the sweat and blood and tears of those who gave us our Constitution and all we have. We could not face the greatest generation, or the silent generations; we could not face our children; we could not face ourselves. This is a sacred debt to our Founders, to America's nobility - our veterans - to our patriots and to America's future.
History of the Fight to Return to the People the Right
Forty-eight states and the federal government had flag-protection laws on the books during the summer of 1984 when Gregory Johnson (a leader of the Revolutionary Communist Youth Brigade) participated in an anti-America demonstration in Dallas, Texas. As the demonstrators marched from the site of the Republican National Convention to the steps of the Dallas City Hall, they defaced buildings with spray paint, turned over potted plants, stole an American flag from a Dallas bank, and generally made nuisances of themselves.
Then, as Texans watched in outrage and anger, Johnson torched the flag. While engaging in this offensive conduct, he chanted, "America, the red, white and blue . . . we spit on you." The Dallas police arrested Johnson. He was not arrested for anything he said about our government, our leaders, or our flag. He was arrested, charged, tried and convicted of desecration of a venerated object in violation of a Texas statute.
Five years later the U.S. Supreme Court heard the case. On June 21, 1989, in a 5-4 decision, the court ruled that Johnson had been denied his rights under the free speech provisions of the First Amendment. Texas v. Johnson, by one vote, took away the right of the people to protect the flag of our nation from intentional, public, physical desecration, a right we enjoyed since our birth as a nation.
JUNE 21, 1989 - By a 5-4 vote, the Supreme Court rules in Texas v. Johnson that burning the American flag is free speech protected under the First Amendment. This invalidates flag protection statutes in 48 states and in Washington, DC.
JULY-AUGUST 1989 - The American Legion and American Legion Auxiliary launch a petition drive to collect one million signatures of Americans demanding a flag amendment that will return to the people the right to protect the flag. The goal is reached within 60 days and the petitions are presented to Congress.
SEPTEMBER 5, 1989 - Delegates to The American Legion National Convention in Baltimore unanimously approve a resolution seeking adoption and ratification of a constitutional amendment that would return to the people the right to protect the flag. In the months that ensue, The Knights of Columbus, The Benevolent and Protective Order of Elks, the Scottish Rite of Freemasonry, the Veterans of Foreign Wars and many other organizations pass similar resolutions at their national meetings.
OCTOBER 12, 1989 - House and Senate adopt House Resolution 2978, the "Flag Protection Act of 1989,"
OCTOBER 28, 1989 - HR 2978 becomes Public Law 101-131 and U.S. Flags are burned on the steps of the U.S. Capitol to protest enactment of the law.
FEBRUARY - MARCH 1990 - Federal judges in Seattle and Washington, DC rule PL 101-131, the Flag Protection Act of 1989, unconstitutional.
JUNE 21, 1990 - By a vote of 254-177, the House fails to obtain the two-thirds majority required to pass a constitutional amendment that would return to the people the right to protect the flag.
JUNE 26, 1990 - By a vote of 58-42, the Senate fails to obtain two-thirds majority for the flag amendment.
FOR THE REMAINDER OF 1990 - The American Legion focuses on memorializing resolution campaigns in the states. The non-binding resolutions urge the Congress to adopt an amendment allowing "Congress and the states" to enact and enforce flag-protection laws.
AUGUST 25, 1992 - Presidential candidate Bill Clinton tells The American Legion National Convention delegates in Chicago that he opposes flag burning and leaves the impression that he would support a flag-protection constitutional amendment that would return to the people the right to protect the flag. "In 1989, when the flag burning controversy arose, I joined with The American Legion in taking steps to react. I signed legislation outlawing flag burning or defacing the flag, but I also wanted to stop flag burning before it starts. So, together with The American Legion, we established one of the finest flag education programs in the country. Volunteers of The American Legion and other veterans groups launched an all-out assault on our grade schools, instilling in our young students the deep patriotism which gives us a lump in our throat and a stir in our hearts when we see Old Glory go up the flag pole. I am proud of my record in support of our veterans."
THROUGHOUT 1992 AND 1993 - Memorializing resolution campaign gains steam. By the end of 1993, 35 state legislatures have approved resolutions. Gallup Organization polls show overwhelming public support for an amendment that would return to the people the right to protect the flag.
MAY 1994 -The American Legion approves a resolution authorizing the funding of The Citizens Flag Alliance, Inc. (CFA). CFA is chartered in Virginia as a 501(c) 4 corporation. To promote the flag amendment and flag education, the CFA seeks membership of other civic, social, veterans and fraternal organizations. The CFA organizes in all 50 states and the membership grows to 112 member organizations by December 1995.
AUGUST 24-26, 1994 - CFA convenes a constitutional scholars' forum at Williamsburg, VA to determine the underlying merit and political viability of the many options available to prevent the public dishonoring of the American Flag. Prof. Arthur Miller of Harvard University School of Law moderates the forum that is attended by scholars from the nation's finest legal institutions, advocacy groups and public policy research organizations. To ensure an accurate breadth of ideological input, the forum is evenly divided between scholars supporting and opposing a flag amendment.
MARCH 21, 1995 - Senators Orrin Hatch (R-Utah) and Howell Heflin (D-Ala.) introduce Senate Joint Resolution 31, calling for a constitutional amendment that reads "The Congress and the states shall have power to prohibit the physical desecration of the flag of the United States." Representatives Gerald Solomon (R-N.Y.) and G. V. "Sonny" Montgomery (D-Miss.) introduce HJR 79, the same resolution, in the House of Representatives.
JUNE 28, 1995 - HJR 79 clears House 312-120,
JULY 20, 1995 - SJR 31 passes Senate Judiciary
AUGUST 1995 - Fifty-six Senators are co-sponsors
DECEMBER 12, 1995 - Senate rejects SJR 31 by a vote of 63-36; the amendment fails by 3 votes.
JANUARY 1996 - CFA launches nationwide campaign
MARCH - NOVEMBER 1996 - CFA launches massive "Get Out the Vote" and public information effort. The nationwide campaign includes press events, voter registration and voter education drives.
NOVEMBER 1996 - Flag amendment supporters capture 25 of the 34 Senate seats and 290 plus House seats. The Citizens Flag Alliance reaffirms its flag amendment commitment.
FEBRUARY 13, 1997 - Reps. Gerald Solomon (R-N.Y.) and William O. Lipinski (D-Ill.) introduce into the 105th Congress House Joint Resolution 54, the flag amendment. CFA officials vigorously encourage member organizations and individuals to persuade their representatives to become co-sponsors.
APRIL 30, 1997 - The U.S. House of Representatives Judiciary Subcommittee on the Constitution holds hearing on HJR 54. Those testifying in favor of the amendment include Maribeth Seely, an elementary teacher from New Jersey; Francis Sweeney, Steamfitters Union, Pittsburgh, Pa.; Carol Van Kirk, member of the American Legion Auxiliary of Nebraska; Alan Lance, Idaho Attorney General; Harvard Law Professor Richard Parker; Major General Patrick H. Brady, Medal of Honor Recipient; and the Honorable Robert Zukowski, Wisconsin State Legislature.
JUNE 12, 1997 - HJR 54 passes House 310-114,
AUGUST 1997 - The so-called Citizens for the Constitution is formed to, in their words, "call attention to the adverse effects of fast-paced constitutional tinkering." They begin by creating eight "standards," which they claim are intended to address when and how the Constitution should be amended. They lobby Congress to adopt these standards that will govern how the amendment process should, in their opinion, unfold. (Note: Citizens for the Constitution has since dissolved.)
FEBRUARY 4, 1998 - Sens. Orrin Hatch (R-Utah) and Max Cleland (D-Ga.) introduce into the 105th Congress SJR 40 that reads "The Congress shall have power to prohibit the physical desecration of the flag of the United States." The amendment has 61 co-sponsors.
OCTOBER 7, 1998 - Sen. Majority Leader Trent Lott brings SJR 40 to the floor of the U.S. Senate asking unanimous consent to proceed to debate and vote. Sens. Robert Kerrey (D-Neb.) and Patrick Leahy (D-Vt.) object to consideration of the resolution, citing lack of time to sufficiently debate the amendment. With that, the measure is lost in the 105th Congress.
NOVEMBER 4, 1998 - Election analysis indicates the CFA is a step closer to passage of the flag amendment in the U.S. Senate in the 106th Congress. Newly elected Senators who support the flag amendment include Sens. Blanche Lambert Lincoln (D-Ark.), Peter Fitzgerald (R-Ill.) and George Voinovich (R-Ohio). All three Senators replace incumbents who were on record as "no" votes, thus enhancing the amendment's chance for passage in the Senate.
FEBRUARY 24, 1999 - Reps. Randy "Duke" Cunningham (R-Calif.) and John Murtha (D-Pa.) introduce HJR 33, a constitutional amendment that reads, "The Congress shall have power to prohibit the physical desecration of the flag of the United States."
MARCH 17, 1999 - Sens. Orrin Hatch (R-Utah) and Max Cleland (D-Ga.) introduce SJR 14. The amendment has 54 co-sponsors. In all, 64 Senators pledge their support of the flag amendment.
JUNE 24, 1999 - The U.S. House of Representatives passes HJR 33, 305-124, 15 votes more than needed for passage of a constitutional amendment.
MARCH 29, 2000 - SJR 14, the flag amendment, falls four short of the necessary 67 votes (63-37) in the United States Senate. The Citizens Flag Alliance notes deep disappointment in two Senators [Robert Byrd
MARCH 13, 2001 - Reps. Randy Cunningham (R-Calif.) and John Murtha (D-Pa.) introduce HJR 36. Sens. Orrin Hatch (R-Utah) and Max Cleland (D-Ga.) introduce SJR 7.
JULY 17, 2001 - The flag amendment, HJR 36 passes the House, 298-125, for the fourth time in consecutive Congresses.
MARCH 13, 2002 - Results of polling, done to determine support for the amendment and released at a Washington, DC press conference, reveal a "new" group of strong supporters of the flag amendment. With 75 percent favoring the amendment that would return to the people the right to protect the flag, 18-24 year olds are the second most supportive - and "new" - age group. Only those respondents 65 and older are more pro flag at 85 percent.
JANUARY-DECEMBER 2002 - A change in Senate
DECEMBER 2002 - Results of the November mid-term elections reveals that more than 300 Representatives and 64 Senators who support the right of the people to protect the flag will take seats in the 108th Congress.
JANUARY 7, 2003 - On the opening day of the 108th Congress, flag amendment chief co-sponsors John Murtha (D-Pa.) and Randy "Duke" Cunningham (R-Calif.) introduced HJR 4 that states, "The Congress shall have power to prohibit the physical desecration of the flag of the United States." Twenty-four colleagues joined them as cosponsors. The following week, on Jan. 15, Sens. Orrin Hatch (R-Utah) and Dianne Feinstein (D-Calif.) introduced an identical measure in the Senate. In addition to the two chief cosponsors, SJR 4 enjoys co-sponsorship from 41 other Senators.
MAY 7, 2003 - House Judiciary Subcommittee holds hearings on HJR 4. Witnesses testifying in favor of the flag amendment include Dr. Richard Parker, Professor of Law at Harvard Law School; Maj. Gen. Patrick H. Brady, USA (Ret.), Medal of Honor recipient and Chairman of the Board of The Citizens Flag Alliance, Inc.; and Lieutenant Antonio J. Scannella, New York/New Jersey Port Authority Police Department.
JUNE 3, 2003 - HJR 4, in a 300-125 vote, sails easily through the US House of Representatives for the fifth time in eight years. SJ Res. 4 is pending action
Fact and Fiction on The Right of the People to Protect Old Glory
FICTION: Burning the American flag is protected "speech" as defined by the First Amendment to the Constitution.
Since our birth as a nation, we the people have exercised our right to protect our flag. This right has been confirmed by every Chief Justice of the United States and Justices on five Courts in the last century who denied that flag burning was "speech." This fact is also confirmed by current constitutional experts, 70 percent of the Congress, the legislatures of all 50 states and more than three out of four Americans.
FICTION: The flag amendment would amend the Bill of Rights for the first time.
FICTION: The flag can be protected by law without the amendment.
FICTION: The Supreme Court is the final word on the Constitution.
FICTION: Flag burnings are rare and not important enough to justify changing the Constitution to punish a few miscreants.
FICTION: If the flag is my property, I can do with it as I wish, as with any of my property.
FICTION: It is impossible to enforce flag protection, as it is impossible to legally define "desecration" or "flag."
FICTION: The flag symbolizes my freedom to burn it.
FICTION: Dictators protect their flag; protecting our flag aligns us with dictators.
FICTION: Patriotism should not be forced.
FICTION: The flag amendment would start a slippery slope toward other amendments and restrictions on desecrating of other things, such as copies of the Constitution.
"The American flag, then, throughout more than
"It passes my belief that anything in the
"I believe that the States and the Federal Government
"The flag is a special kind of personality. Its use is traditionally and universally subject to special rules and regulations . . . The States and the Federal Government have the power to protect the flag from acts of desecration."
"[L]ove both of the common country and of the State will diminish in proportion as respect for the flag is weakened. Therefore, a State will be wanting in care for the well-being of its people if it ignores the fact that they regard the flag as a symbol of their country's power and prestige, and will be impatient if any disrespect is shown toward it."
"In my considered judgment, sanctioning the public desecration of the flag will tarnish its value - both for those who cherish the ideals for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression -- including uttering words critical of the flag... be employed."
"Burning and destruction of the flag is not speech.
"Flag burning is not free speech. It is an act of hatred
"I regard legal protections for our flag as an absolute necessity and a matter of critical importance to our nation. The American flag, far from being a mere symbol or a piece of cloth, is an embodiment of our hopes, freedoms and unity. The flag is our national identity."
"The First Amendment protects freedom of speech,
"Speech is when you talk."
Entertainer and recording artist Pat Boone,
"The flag speaks. The only inanimate object that speaks. It says what it is and what it stands for. When draped
"Burning a flag is not speech and should not fall under First Amendment protection."
"Why is flag burning protected speech and prayer is not? What is said when you burn a flag? If speech can be
Throughout our history, that flag has inspired defenders of our freedoms to press on to the goal, to achieve great deeds when nothing less would suffice. The mere sight of Old Glory waving majestically reminded them of America, their home - a home and a flag worth defending.
Immigrants to Ellis Island and San Francisco knew its meaning. It was not the flag of their king or of their fathers. It was their flag...and it would be the flag of their children. It would be respected, as a symbol of hope, not despair; a symbol of freedom, not oppression.
Our patriots understand how precious free speech is and they would die for it. Many have. What they would not understand is how desecrating the flag is speech. And they know how precious the Constitution is. It was written in their blood.
What are children being taught about love of country? What are they being taught about the greatness of America? How many of them will start each school day pledging their allegiance to our flag, as most of us did? How many of them will learn the proper way to respect the flag, and what it means and why patriotism is important? And what of those who grow up learning that the flag is just one symbol among many, just one point of view, not deserving of any special recognition, dignity or respect? How will they reconcile the idea that we prove our love for our nation's flag by allowing those who hate America to desecrate it without penalty?
The greatest tragedy in flag mutilation is the disrespect it teaches our children, disrespect for the values it embodies, and disrespect to those who have sacrificed for those values. Disrespect is the genesis of hate, it provokes the dissolution of our unity, a unity which has only one symbol - the flag.
You cannot separate the values issue from our children and what kind of world we want to leave them. Our values are formed, theirs are not. The flag is our greatest teaching aid for values and for patriotism.
In a culture that glorifies the repugnant, how can we expect the youth of America to share our sense of reverence for the flag? How can we expect our young people to feel true allegiance to something the Supreme Court says can be defiled, defaced and desecrated?
The flag represents the core of what we have been; burning the flag represents what we are becoming. Waving the flag has ignited the flame of patriotism in the hearts of countless Americans; burning the flag will put that fire out.
America is ruled today, not by what the Founders put in the Constitution, but what the Courts are finding there. And much of what the Courts are finding there is the agenda of a small minority of elitists, most of whom were raised on a different playing field than the rest of us, who never served on a battlefield, and who are convinced they know what is best for America.
The flag amendment is about holding the line on respect, on the values that many risked our lives to preserve. We live in a society that respects little and honors less. The great majority of us can trace most of today's ills to a breakdown in respect ... for laws, for traditions, for people, for the things held dear.
The flag burners are not the enemies to our Constitution. It is those who call flag burning "speech," who seek to control our Constitution, who are the real enemies.
According to Webster's Dictionary, "speech" is "the act of expressing thoughts, feelings, or perceptions by articulation of words; something spoken; vocal communication, conversation."
Abraham Lincoln once asked how many legs would a dog have if you called his tail a leg. The answer is four. The Supreme Court counted the tail when it said burning the flag was "speech." They were wrong. Desecration of the flag is clearly conduct. However, what concerns us most is not those who defile our flag, but those who defile our Constitution by calling flag burning speech.
Returning to the people the right to protect the flag is not about free speech. It is not about tinkering with the Constitution. It is not about toleration of those with different views. It is about the kind of people we are. It is about different kinds of people wresting for the soul of America. It is about a minority who fear the democratic process and show disdain for the Founding Fathers who wanted the majority of the people to control the Constitution - through their representatives, if possible; through the amendment process, if necessary.
The issue no longer centers on the wisdom of protecting the flag, but on whether or not the people should have the freedom to protect their flag. The amendment itself does not provide protection; it merely provides an avenue for protection, if that is the will of "We the People."
To argue against flag protection as a reason not to pass the amendment is to argue against the American people having the right to decide the issue for themselves. And if not the people, who would we have decide the issue? Is not our government based on trusting the collective wisdom of the people? Did not Thomas Jefferson say: "It is my principle that the will of the majority should always prevail"?
The fight to protect the flag is not on the battlefield, but at the ballot box. When Americans go to the polls they'll help decide the fate of the flag by choosing members of Congress and state legislatures who will vote for a constitutional amendment that will return to the people the right to protect the flag.
Failure to protect our flag by law is not a celebration of liberty; it is the celebration of evil. A great nation cannot preserve its greatness by turning a blind eye and a deaf ear to that which is wrong, to that which is destructive, to that which is immoral and evil.