Not so fast: Why Trump’s take on flag burning is unconstitutional

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Protesters burn a U.S. flag outside Trump Tower following President-elect Donald Trump's election victory in Manhattan, New York, U.S., November 9, 2016. REUTERS/Andrew Kelly

Protesters burn a U.S. flag outside Trump Tower following President-elect Donald Trump’s election victory in Manhattan, New York, U.S., November 9, 2016. REUTERS/Andrew Kelly

Early Tuesday morning, Trump tweeted the following: “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 president-elect’s tweet attempts to pry open a question that has been constitutionally settled for the last quarter century.

In the 1990 court case, United States v. Eichman, the Supreme Court in a 5-4 decision struck down a congressional act that prohibited flag burning, citing the First Amendment’s protection of speech. The decision widened the purview of a similar 1989 holding, which prevented states from enacting these bans on expression.

The justices’ words at the time dripped with bitter reluctance. In the 1989 ruling, Justice Anthony Kennedy called the decision a “painful judgment,” writing in a concurring opinion: “It is poignant but fundamental that the flag protects those who hold it in contempt.”

Justice Antonin Scalia, whose textualist mold Trump has hailed and vowed to replicate in justice appointments, sided with Kennedy. But later remarks showed that his constitutional reading eclipsed his personal beliefs. In 2015, at a Union League event, he said: “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”

It’s unclear whether Trump will move to change this protection, or how he would do it. But he’s not the first politician to push the idea.

In 2005, Hillary Clinton supported the Flag Protection Act, which could punish a person with up to one year in jail and a $100,000 fine, Fox News reported.

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