Respoonses of Professor Presser to Questions, page 4

speech, and rejected Texas's argument that protecting the symbolic nature of the national flag was a "compelling state

purpose, I fail to see how any Congressional statute could reverse the result. I do not believe that any statute could be construed as "neutral," in light of these hearings, and I think the Court would have to hold that the statute was a blatant attempt to challenge the Court's interpretation of the

Constitution, and was thus unconstitutional.

3. The clarity of the effectiveness of a Constitutional amendment versus a statute is readily apparent. Do you feel that this proposed Constitutional amendment which limits activity, earlier interpreted as protected under the First Amendment, would be inconsistent with the amendment process as provided in the Constitution? Please explain.

In my opinion the amendment process exists, among other reasons, for the people to declare that they wish their Constitution to be interpreted in a particular manner. Four other Amendments, as you heard in testimony before the Committee, came about as a result of Supreme Court decisions which were sought to be reversed.

The effect of those Amendments, then, was

to indicate how the people thought the Constitution should be interpreted. Indeed, I would say that this was also the purpose

Respoonses of Professor Presser to Questions, page 5

of the Bill of Rights itself, the First ten amendments to the Constitution, which were passed to clarify the nature of our Federal government. I think that the proposed Amendment to the Constitution, to allow statutes prohibiting desecration of the flag, fits firmly within that tradition. It should never be forgotten that the Constitution survives because it has the support of the people, who understand that they are the nation's ultimate sovereign.

Any amendment does no more than confirm that sovereignty. Thomas Jefferson once wrote that a little revolution every twenty years was necessary because, as he put it, the "tree of liberty" needed to be watered from time to time "with the blood of

patriots."

I think that Jefferson probably went a bit too far, but I do think that an Amendment to the Constitution, from time to time, does help in reaffirming the basic principle that our people are still the Republic's sovereign. When the Supreme Court has reached a point in Constitutional interpretation where they have strayed far from the meaning of the First Amendment, as I think they did in Johnson, such an Amendment would not only restate the principle of popular sovereignty, but would put First Amendment jurisprudence back on track.

The CHAIRMAN. Again, fellows, thanks a lot and this time we really are adjourned. Thanks.

[Whereupon, at 5:02 p.m., the committee was adjourned.]

I write to advise you that at its recent meeting in Honolulu, the
American Bar Association's House of Delegates, "in the interest of
preserving intact the right to freedom of speech and expression
under the First Amendment," overwhelmingly adopted a resolution
opposing any amendment to the U.S. Constitution or enactment of
federal legislation concerning desecration of the American flag.
The resolution further "deplores any desecration of the flag and
declares its full support for the proposition that the flag is a
revered national symbol that ought to be treated with great respect
by all citizens of the United States of America."

The House of Delegates adopted its policy based on the unanimous
report of a special task force I had appointed to examine the
numerous proposals stemming from the Supreme Court decision in Texas
v. Johnson and to recommend ABA policy positions on these
proposals. The task force was chaired by former Commissioner of the
Internal Revenue Service Randolph Thrower. Its members were
Columbia University Law School Dean Barbara Black; former Deputy
Secretary of State Warren Christopher; former Harvard Law School
Dean and Solicitor General of the United States Erwin Griswold;
Stanford University Law School Professor Gerald Gunther; former New
York University Law School Dean Robert McKay; former U.S. Attorney
Earl Silbert; and former Secretary of State Cyrus Vance.

Since you will soon be asked to vote on these proposals I am sending along to you both the adopted resolution and the report of the task force which I trust that you and your staff will find helpful.

We of the American Bar would be pleased to provide you with any additional information you might require, or to meet with you at your convenience so that we can respond to any concerns that you might have.

Should you have any questions please contact Robert Evans, Director of our Governmental Affairs Office in Washington, D.C., at 331-2214.

23-977 0 - 89 - 21

Adopted by voice vote
August 1989

Report No. 481

The proposal was amended to read as follows:

Be it resolved, that the American Bar Association, in the interest of preserving intact the right to freedom of speech and expression under the First Amendment of the United States Constitution, opposes the adoption of an amendment to the Constitution concerning the desecration of the American flag.

Be it further resolved, that the American Bar Association opposes the enactment of federal legislation that would seek to criminalize the desecration of the Amrican flag as a political protest.

Be it further resolved, that the American Bar Association deplores any desecration of the flag and declares its full support for the proposition that the flag is a revered national symbol_that ought to be treated with great respect by all citizens of the United States of America.

REPORT
INTRODUCTION

On September 25, 1789, the newly-created House of Representatives of the United States Congress, pursuant to a pledge made to the States in order to secure their adoption of the Constitution, launched the "Bill of Rights', the first ten amendments to the Constitution. Prominently placed in the first of the adopted amendments was the guarantee of freedom of speech. Its application was broadened and deepened by the adoption of the 14th Amendment following the close of the Civil War. Over almost 200 years, many of which were stressful for the growing nation and its people, the Bill of Rights has remained honored and intact.

In response to the decision of the United States Supreme Court in Texas v. Johnson, U.S. 57 U.S.L.W. 4770 (June 21, 1989), it is now being proposed for the first time that the First Amendment's guarantee of freedom of speech be restricted by constitutionai amendment. The lawyers of America have an appreciation of the significance of the principle of freedom of speech and how it is woven into the fabric of our nation. they understand that the American flag and what it stands for is not honored or protected by criminalising the offensive acts of those who express their opposition to governmental policies by abusing the flag.

Hence,