No one in America was talking about the legality of flag burning before this morning at 6:55 AM EST. If you do a Google News search for “flag burning” of the last two years (excluding the last 24 hours), the top stories it surfaces are about whether or not states can legally ban the burning of the Confederate flag.
So what happened this morning at 6:55 AM? America got Trumped; again, and not for the last time.
Donald Trump is facing critiques over his racist cabinet picks, his unprecedented conflicts of interest, his fractured inner circle and his lying about the popular vote, so why not add an unconstitutional proposal about civil liberties to the mix?
OK, Donald. Let’s do this. Your suggestion that it should be illegal violates decades of settled constitutional law, and your suggestion that it should be punished with a loss of one’s citizenship comes right out of the dictator’s handbook.
The U.S. used to have a Flag Protection Act, passed in 1968 in reaction to the Vietnam War protests (which is how you know it was a really great law). That law mandated that flag-burners be jailed for up to a year. Many states followed suit, passing similar laws of their own.
It took a while for a case involving flag burning to make its way to the Supreme Court, but when it did, the Court was pretty firm on the matter. It ruled on two separate occasions that burning the U.S. flag is an exercise in free speech and that the government’s interest in protecting its flag does not trump the First Amendment.
“The Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” Justice William Brennan wrote in the majority opinion on United States v. Eichman.
These decisions were not just handed down by the liberal wing of the court. The late Antonin Scalia, a man Trump has said is his guideline for appointing new supreme court justices, sided with the majority in both cases.
It would probably take an amendment to the Constitution to get past the precedents the Supreme Court has established. Such an amendment has been debated in Congress multiple times in the late 1990s and early 2000s, passing the House with the necessary votes, but dying in the Senate. And, to show you that this sort of foolishness knows no partisan boundaries, Hillary Clinton once sponsored a Flag Protection Act in 2005. The law never even made it to the Senate floor or was brought up by Clinton again.
Now that we’ve established anti-flag burning laws go against both the letter and the spirit of the Constitution, let’s talk about Trump’s proposed punishment. A year in prison was dumb when Congress first passed it and is dumb now. Anyone thrown in jail for such an offense would meet the dictionary definition of “political prisoner.”
But the suggestion that people should lose their citizenship is where things get scary. If you do a Google News search for “revoke citizenship,” there are two types of stories that show up: articles about immigration problems and articles about undemocratic regimes punishing dissenters. The U.S. is heading in the direction of having both of those.
Thankfully, the revocation of citizenship is likely to be as constitutionally bankrupt as flag burning. There’s no legal mechanism for revoking citizenship, even as punishment for treason.