Letters With Senator Hatch (UT - R)

OK, this is gonna be a longer post......and very, very political!

For those of you who don't know, sometime ago I wrote Sen Hatch regarding H.J. Res 10, which is a consitutional amendment that would give congress the right to prohibit the physical desecration of the US Flag.

Immediately below is my initial letter, and further below is the response from Sen. Hatch. This response was received earlier today in the USPS. I have typed in his letter, and to the best of my knowledge, it is correct, right down to the punctutation.

My Letter:

Dear Senator Hatch,

I am a resident of Utah and am writing you to express my concern about your reasons for proposing H.J. RES.10 and my problems with the legislation itself.

First, the press release for June 22nd, 2005 on your website quotes you as saying, “This was the status quo for more than 200 years until five unelected Justices (emphasis added) found an unknown constitutional right to desecrate the flag.” This statement tells me that you have a problem with our country’s Constitution. The Constitution of the United States, Article II, Section 2, clearly defines that Supreme Court Justices are to be appointed by the President of the United States, and then are subject to confirmation proceedings in the U.S. Senate. This means that Supreme Court justices are not elected by the general public. However, as a Senator, you get to vote on these justices when they appear before the Senate as nominees. In particular, you had the chance to vote on two of the five justices you complain about (Scalia and Kennedy). In fact, you either voted for them, or abstained from the vote. I have not been able to find the specific roll call, but the votes were 97 and 98 to 0, respectively. So, either you liked these justices, or did not think their nomination important enough to vote on. Either way, you elected some of these “unelected” justices who gained their positions through Constitutional means.

Second, I think that a Constitutional Amendment giving Congress the power to prohibit the desecration of the United States Flag is wrong. The Supreme Court has ruled twice on this issue, ruling both times that, flag burning is in fact, protected speech. Should this amendment pass, it begins to limit free speech. Which of my civil liberties will fall next?

Third, this amendment to the Constitution is very vague in its terminology. “Desecrate” is a very broad term, open to a wide range on interpretation. What precisely would you define desecration to be? Is it simply the destruction of the flag or its likeness? Is it any type of distortion of the flag?

Fourth, the flag is simply a piece of cloth that represents many ideals. These ideals are not destroyed along with the cloth when it is burned. Would you be just as upset if I were to shred copies of the Declaration of Independence? Or would you say that the ideals of “Life, Liberty and the Pursuit of Happiness” still exist, even if the piece of paper is gone?

Sixth, I understand that you disagree with the court on this issue. However, in our system of government not everything will be they way we as individuals hope it will be. I am not personally a fan of desecrating the U.S. Flag, yet I recognize the right of another individual to express their viewpoint in this manner.

Finally, I would like to know why you so staunchly hold that desecration of the United States Flag is not free speech. Also, when this country is faced with so many other problems that need to be fixed, why do you insist trying to fix something that is not really harming anything? This country has survived many forms of protest over its two hundred eighteen year history, including flag desecration. Last I checked the country was still intact, along with all of its institutions, traditions and ideals. As one of your constituents, I believe there are many better uses of your time in Washington, and I suggest you work on more pressing issues. I look forward to hearing from you.

Sincerely,
Paul

Sen. Hatch's response (Italics added, and Dated Aug. 2, 2005):

Dear Paul,

Thank you for your letter expressing your opposition to a constitutional amendment allowing Congress to protect the American flag from desecration (H.J. Res 10). I am always interested in the thoughts and opinions of Utahns and I welcome the opportunity to respond.

As you know, H.J. Res 10 was introduced in the House of Representatives by Representative Randy Cunningham on January 25, 2005, and was agreed to by a vote of 286-130 on June 22, 2005. As you noted, I was the original author of the Senate version of this resolution (S.J. Res 12). This proposed amendment would not make anything illegal. If enacted, it would simply authorize - but not require -Congress to pass a law protecting the American flag. The resolution is currently pending before the Senate Judiciary Committee, on which I serve.

Throughout our country's history, the right to protect the flag has been recognized as secured by traditions, statutes, and the holdings of countless state courts and several Supreme Courts. Support for legislation to protect the flag dates back to very beginning of our country. Indeed, many of our Founding Fathers, such as James Madison and Thomas Jefferson, supported legal protections for the flag.

Despite this long tradition, the Supreme Court in 1989 created a new First Amendment right by deciding the extremists who physically disgrace the American flag are using "speech." While you correctly note that I personally had the opportunity to vote on the confirmation of several of the justices involved in that decision, the Supreme Court is empowered to apply existing law, not legislate from the bench. Such contentious policy decisions, in my opinion, are better resolved by the American people, acting through their elected representatives.

In addition, I believe the Court's decision was wrong. In my opinion, prohibiting flag burning and other contemptuous physical mistreatment of the flag does not violate the First Amendment's guarantee of free speech because flag burning is conduct, not speech. While the First Amendment protects the right to share ideas, it does not protect every method that someone might select to express those ideas. For example, a person cannot blare his or her political views at two o'clock in the morning in a residential neighborhood and claim First Amendment protection. Legislative bodies are able to regulate conduct that people might seek to use as part of a political message. Therefore, it seems clear that flag desecration - burning, spitting upon, trampling, or other such acts - can be prohibited without violating free speech.

The American flag is not just a symbol of our federal government. It has always represented an ideal - it is revered as a unique symbol of our country and of the freedom we enjoy as Americans. I firmly believe that a constitutional amendment is needed to allow the American people to protect our flag from purposeful desecration.

Thank you, once again, for your letter. Though we seem to disagree on this issue, I hop my comments have been helpful.

Sincerely,
Orrin G. Hatch
United States Senator

Post letter commentary:

This letter is simply crap in my mind. Although he certainly provides plenty of room for me to write a third letter. Which, when written, will appear here in my blog. Below are some of my initial thoughts of the letter:

1) This is silly, why grant congress the power if Hatch does not intend to help congress use it? Just for contrast, imagine an amendment that grants congress the ability to outlaw certain religions. Its the same idea, granting congress the power to limit First Amendment rights under the guise of constitutional legality, in the hope that the Supreme Court will not strike it down.

2) If the Supreme Court is supposed to rule on existing law, what's his problem? Is not the First Amendment exisiting law? He is mad that they have applied the law in a manner that offends him, although he is nowhere near the victim (hint kids: there is no victim).

3) Plenty of legal conduct in our society also counts as free speech. Why is flag burning any different?

4) The reason one cannot blare political rhetoric at 2 AM is simply because there are victims present. For flag burning (if done peacefully), where is the victim?

5) The flag represents an ideal to Sen. Hatch. I'm glad it represents freedom to him too. Why then does he not consider flag burning a legal method of protest? I guess we have different versions of freedom.

6) Also, he never explains to me why this is more important that health care, job training funding, the 2 wars we're engaged in, or any of the hundreds of more useful things he could be doing. Is there some massive flag burning movement that I am unaware of??

OK, that's enough for now, please comment on this! I appreciate hearing other peoples ideas, especially on constitutional ideas.

-Paul