A Brief Consideration of Flag Burning

In a tweet sent last week, President-Elect Donald Trump suggested a possible controversial policy for the nation: that it should be illegal to burn the American flag and that violators should face jail time or even a loss of their citizenship for doing so. While Trump’s suggestion may have enraged liberals and made conservatives proud, the country has been down this road previously.

Flag burning has been argued about in the U.S. Supreme Court and unfortunately has been realized many times, both within U.S. borders and outside them. But for Trump’s policy notion to become a reality, it would actually take a Constitutional Amendment.

The history of burning a nation’s flag as a symbol goes back millennia. In modern times, there have been innumerable cases around the world where the desecration of a country’s flag has been grounds for punishment, imprisonment and even execution.

In Iran, for example, igniting the regime’s colorful flag would instantly subject the burner to a charge of blasphemy, which can result in a death sentence. Both the former Soviet Union and South Africa have had laws punishing those who torched those country’s flags. And in Japan, while there’s no law specifically against burning the country’s rising sun colors, doing so has gotten perpetrators charged with destroying public property.

Indeed, who the flag belongs to could be a determiner of how critical the offense is. Trump didn’t get into details about who his proposed policy might apply to, but if one assumes it would apply equally even if the flag in question was one’s own, then one must also inquire further about the theoretical circumstances in question.

Currently, it’s custom for flag fliers, especially official ones, to burn the flag if it’s irrevocably damaged or worn out. There might also be cases where a flag could be burnt accidentally or unintentionally.

Some media commentators have speculated that Trump’s tweet may have been in response to a post-election protest on the campus of Massachusetts’ Hampshire College wherein a group of students set the stars and stripes alight, resulting in the school ceasing the flying of the flag. That, in turn, provoked members of the faculty to complain; it’s not known if Trump picked up on the story.

The Supreme Court twice has upheld the prerogative of people to burn the flag as a right of free speech; in fact, it was recently deceased conservative Justice Antonin Scalia who argued, “If I were king, I would not allow people to go around burning the American flag — however, we have a First Amendment which says that the right of free speech shall not be abridged — and it is addressed in particular to speech critical of the government.”

The court’s decision in 1989 overruled a Texas Supreme Court decision specifically venerating the flag. In the wake of that decision, Congress passed the Flag Protection Act of 1989, which was a rewriting of earlier attempts at similar laws, but, like those, it was overturned as unconstitutional by the Supreme Court the following year.

In both cases, the court was split 5-4 along ideological lines in favor of free speech, with Justices Sandra Day O’Connor, Byron White, John Paul Stevens and Chief Justice William Rehnquist arguing for flag protection while Justices Anthony Kennedy, Harry Blackmun, Thurgood Marshall, William Brennan and Scalia made up the majority protecting the act as one of free expression guaranteed by the Constitution’s First Amendment.

Trump himself has been a vocal supporter of the First Amendment, once tweeting a famous quote from George Washington — “If the freedom of speech is taken away, then dumb and silent we may be led like sheep to the slaughter.”

But Trump spokesman Jason Miller made it clear that Trump believes flag burning is another matter. “Flag burning should be illegal,” Miller said to CNN’s Chris Cuomo. “The President-elect is a very strong supporter of the First Amendment, but there’s a big difference between that and burning the American flag.”

Republican Senate Majority Leader Mitch McConnell has gone on record taking the opposite view, writing in a 2006 op-ed for the Central Kentucky News that the “flag stands for freedom, even to desecrate… No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution and our country are stronger than that. Ultimately, people [who burn the flag] pose little harm to our country. But tinkering with our First Amendment might.”

Since 1990, Congress has attempted on and off to pass a Constitutional Amendment protecting the flag from desecration, but each time, it’s failed to be ratified in the Senate. The most recent instance was in 2006 when proponents of the Amendment were just one vote shy of their goal; perhaps this is why Trump believes that his idea stands a real chance of being made legal — or, at least, the possibility of jail time for any offenders.

Currently, under U.S. law, a person cannot be deprived of their citizenship unless they renounce it or swear allegiance to a foreign power; this is unlikely to change no matter how flagrantly a flag is incinerated.

~American Liberty Report


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