Election 2020

About That Flag-Burning Flap...

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The world’s biggest Twitter troll, Donald J. Trump, got everybody’s panties in a bunch with this tweet today:

Naturally, the usual suspects — the strange-bedfellows alliance of the hard Left and the #neverTrumpumpkins — is going nuts over this latest threat to life, liberty, the pursuit of happiness and the first amendment.

Since the terrorist attacks of Sept. 11, 2001, politicians have periodically announced with fanfare that they would introduce a bill to strip the citizenship of Americans accused of terrorism. The idea tends to attract brief attention, but then fades away, in part because the Supreme Court long ago ruled that the Constitution does not permit the government to take a person’s citizenship against his or her will.

But on Tuesday, President-elect Donald J. Trump revived the idea and took it much further than the extreme case of a suspected terrorist. He proposed that Americans who protest government policies by burning the flag could lose their citizenship — meaning, among other things, their right to vote in future elections — as punishment.

Mr. Trump wrote the post shortly after Fox News aired a segment about a dispute at Hampshire College in Massachusetts, which removed the American flag from its campus flagpole after protests over his election victory; during one demonstration, someone burned a flag.

Even if Mr. Trump could persuade Congress to enact a criminal statute, a dramatic shift in the balance between government power and individual freedom, anyone convicted and sentenced under it could point to clear Supreme Court precedents to make the case for a constitutional violation.

(You can read about the Hampshire College flap at this link.)

It’s clear that Trump’s threat is constitutionally meaningless; although Congress can grant an individual American citizenship, it doesn’t seem to be able to strip him of it, except in unusual circumstances. Trump’s real point, however, concerns the criminalization of burning the American flag — something that’s been a GOP talking point and platform plank for ages.

The obstacles include the precedent that the Constitution does not allow the government to expatriate Americans against their will, through a landmark 1967 case, Afroyim v. Rusk. They also include a 1989 decision, Texas v. Johnson, in which the court struck down criminal laws banning flag burning, ruling that the act was a form of political expression protected by the First Amendment.

So why did Hillary Clinton and other Democrats support just such an amendment in 2005?

While president-elect Donald Trump has taken flack from civil libertarians for his sudden resurrection of the flag-burning issue, it’s worth noting that his former general election opponent Hillary Clinton once came under fire from liberal allies for sponsoring a bill that aimed to throw those who burned the flag in prison.

Clinton’s stance on flag-burning is complicated to say the least. In theory, she has consistently opposed a flag-burning amendment, and voted against it when it came up for a vote in 2006. But a year earlier, she sponsored a bill that was widely seen as a runaround the Supreme Court precedent outlawing the desecration of flags.

The Flag Protection Act of 2005 would have banned “destroying or damaging a U.S. flag with the primary purpose and intent to incite or produce imminent violence or a breach of the peace,” punishable with a year in prison. In theory, that was different from previous flag-burning bills, which banned all flag burning. In support for the bill, Clinton cited the Supreme Court’s 2003 decision in Virginia v. Black, which found that bans on cross-burning were unconstitutional, but constitutional when limited to incitement and threats of violence.

Here you can deep-dive into the bill, which was sponsored by former GOP Sen. Robert Bennett of Utah, and co-sponsored by Clinton, Barbara Boxer, and Republicans Mark Pryor and Thomas Carper. The hypocrisy, it burns…