November 30, 2016
Private: Flag-burning Do-over
Caroline Fredrickson
President-elect Trump posted one outlandish tweet after another all the way to the White House. But his latest tweet on flag-burning topped most of the others.
On Nov. 29, Trump tweeted:
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
The tone and text of the post read like something that a ruler from a bygone era without the checks and balances of the U.S. Constitution would say. Most alarming is the sweeping and ominous part about “consequences.” Fortunately, a chorus of critics checked Trump.
The very next day, both The New York Times and The Washington Post editorialized against Trump’s tweet. The headline in the Post’s View summed up the problem, “In one tweet, Trump trashes two constitutional amendments.”
In 140 characters, the next president knocked the First and 14th Amendments. The Supreme Court ruled almost three decades ago that burning a flag is protected speech under the First Amendment. Ironically, Trump’s model of the ideal Supreme Court Justice, the late Antonin Scalia, joined the majority decision in the 1989 case, Texas v. Johnson.
Even Senate Majority Leader Mitch McConnell (R-Ky.) and House Majority Leader Kevin McCarthy (R-Calif.) chimed in right after the tweet to educate the public and president-elect about the First Amendment protection. Both members of Congress felt compelled to voice their support for this protected speech. McCarthy tried to shut down the debate by stating the unlikelihood of congressional action.
That did not stop a transition spokesperson from defending the unconstitutional twitter proposal to make flag-burning illegal on CNN suggesting most Americans support Trump on this issue. Clearly both the president-elect and his staffer missed the point of the right to free speech. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” stated Justice William Brennan in the Texas decision, the first of two times the Supreme Court upheld this form of protest.
There is a third high court decision that this single tweet ignored. Let’s turn to the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
Nearly half a century ago, the Supreme Court decided in Afroyim v. Rusk that the 14th Amendment prohibited the federal government from stripping away citizenship from people who are born or naturalized in the United States. Two small exceptions exist for anyone who denounces their citizenship or makes false statements in the process of becoming one.
One tweet trampled over two constitutional amendments and three Supreme Court decisions. How can a president-elect swear to uphold the U.S. Constitution when he does not understand it in the first place?