Of all the disturbing comments over the past fifteen-months, from now President-Elect Trump I find this one the most disturbing.
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
Sure it was a knee-jerk reaction to seeing some protests at a Massachusetts Campus, and businessman Trump and even Candidate Trump could use that excuse. Not the President-Elect. Not Ever.
To further peel back the layers of how disturbing this tweet is, it is important to note that burning the United States Flag is legal. Furthermore- The President-Elect offers two vastly different possible punishments, were it not. The former isn’t that bad, taken in context. The latter is not only unconstitutional, it is a possible harbinger of things to come.
Before we dive into that, let’s look at the history of Flag Burning and the actual legality behind it.
The history of trying to prevent Americans from burning their flag is a long one. Though the first Supreme Court ruling on the matter took place in 1907, concerns about flag burning really picked up speed during the Vietnam War. In 1968, in response to protestors who burned the flag in anti-war demonstrations, Congress passed a federal law that banned burning and otherwise desecrating the flag.
That all changed
In 1984, when Gregory Johnson and his fellow party members descended on the Republican National Convention, expressing their disdain for the proceedings through dramatic protests that included die-ins, occupations of stores and confrontations with counter-protestors.
All of the protestors were arrested, but only Johnson was charged with violation of a Texas law forbidding the desecration of “venerated objects” like the flag. A defiant Johnson was convicted. “I remember the prosecutor telling the jury they needed to load up on me and make an example of me,” Johnson recalled in an interview. “I did not ask to go to the Supreme Court, I was dragged there.”
The case that followed clarified the principles that underlie the First Amendment
That’s exactly what happened: Johnson’s attorneys appealed his case all the way to the highest court in the land. In Texas v. Johnson, they argued that his actions constituted “symbolic speech” protected under his First Amendment rights. The Supreme Court agreed in a 5-4 decision.
“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,” wrote Justice William Brennan in the majority opinion.
The majority, which also included Justices Marshall, Blackmun, Kennedy and Scalia, found that the conviction was inconsistent with Johnson’s First Amendment right to verbal and nonverbal expression.
The fight to protect the flag against burning didn’t end there
Despite the Supreme Court ruling, opponents of flag burning continued to fight to prevent it. A few months after the ruling, Congress passed H.R. 2978, a bill also known as the Flag Protection Act of 1989 that would have prevented “knowingly casting contempt on the U.S. flag” under Federal law. However, the Supreme Court then ruled that it was unconstitutional.
So that’s the history, and what is clear is that burning the American Flag is a highly divisive issue. After all we ensconce a flag around the caskets of the brave men and women who serve this nation and perish in combat.
I have one which has been folded by an Honor Guard on my bedroom wall.
The debate about the act of burning of the flag, the division will not close anytime soon. However, it is important to note that many of the soldiers who are currently serving this country, will admit that they fight for the liberty of America, and that includes someone’s right to protest by burning the flag.
But that’s not what bothers me.
If President-Elect Trump wants to suggest that the law is changed that is one thing.
If he wants to suggest a year in jail, that is another disturbing yet possible argument.
Donald Trump suggested stripping an American Citizen of their citizenship, to be clear we don’t strip any citizen of citizenship. Not even desserters in combat zones.
The Nationality Act of 1940 provided for loss of citizenship based on foreign military or government service, when coupled with citizenship in that foreign country. This statute also mandated loss of citizenship for desertion from the U.S. armed forces, remaining outside the United States in order to evade military service during wartime, or voting in a foreign election.
The Supreme Court ruled in Afroyim’s favor in a 5–4 decision issued on May 29, 1967. The opinion of the Court—written by Associate Justice Hugo Black, and joined by Chief Justice Warren and Associate Justices William O. Douglas and Abe Fortas—as well as Associate Justice Brennan, who had been part of the majority in Perez—was grounded in the reasoning Warren had used nine years earlier in his Perez dissent.
The court’s majority now held that “Congress has no power under the Constitution to divest a person of his United States citizenship absent his voluntary renunciation thereof.” Specifically repudiating Perez, the majority of the justices rejected the claim that Congress had any power to revoke citizenship and said that “no such power can be sustained as an implied attribute of sovereignty”.Instead, quoting from the Citizenship Clause, Black wrote:
“All persons born or naturalized in the United States … are citizens of the United States….” There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.
In other words, Trump has continued to lay the framework for the disenfranchisement of those who he disagrees with. There are matters of contention, and there are matters of principle. Unfortunately our President-Elect is not a man of principle.