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Tuesday, November 29, 2016

The return of flag burning? (Updated)

Donald Trump tweeted this morning (after the sun was up, so no 3 a.m. jokes to be had) "Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!" Jonathan Chait suggests this is misdirection to cover Trump's pending kleptocracy and the (from Democrats' perspective) extreme policy ideas of his cabinet members, a red-meat issue to rile up both his critics and supporters

But it raises the question whether a flag-burning amendment is coming in the new Congress and whether it might, finally, pass. The last time it moved to a vote was 2006, the last time Republicans controlled both houses and the White House; it passed the House and fell one vote short in the Senate. And that was without an unpopular Republican President making it into a thing. With a very different, more conservative Senate and a Republican president willing to making it an issue that appeals directly to his base, might the amendment finally get out of Congress? Plus, Republicans control both chambers in 30 states and Nebraska's unicameral legislature seems likely to go for it, given the state's politics. Are there seven more states to be had in a new political environment?

Another thought: Maybe Trump's target is not Barack Obama's legacy or Lyndon Johnson's legacy, but William Brennan's legacy.

Update: A number of Republican Senators and Representatives, including Mitch McConnell, reminded Trump that the First Amendment protects flag burning and the right to "disgrace" the flag. Of course, one could see many people pivoting from such "is" statements about flag burning to support an amendment that creates a new "ought." To his credit, McConnell seems more categorically opposed to messing with the First Amendment.

Second Update: What would the vote be if flag burning came anew before the current Court? The only current justice I could see ruling against flag burning being protected, based on recent First Amendment cases, is Justice Alito.

Third Update: I should add that, under the theory of departmentalism I have been espousing here and elsewhere, Trump's threats are constitutionally permissible and appropriate. If he believes flag-burning can constitutionally be punished, he is free to seek to prosecute, jail, or strip citizenship from those who burn flags. He will lose when he tries. But his actions are consistent with his oath and his Take Care obligations.

Posted by Howard Wasserman on November 29, 2016 at 01:51 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


A suggestion by president-elect Donald Trump that those who burn the American flag should be stripped of their citizenship or jailed has resulted in widespread speculation about how difficult it would be to amend the Constitution so that flag burning could again be criminalized.

But this misses an important point because, even in the very unlikely event that such an amendment were adopted, there are many ways in which those who wish to burn or otherwise desecrate our national symbol could escape punishment for doing so.

For example, a recent proposed amendment (S.J. Resolution 180) used this language: "The Congress and the States shall have power to prohibit the physical desecration of the Flag of the United States." The word flag, as defined in 18 U.S.C. 700, means "any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed."

But anyone who wished to dishonor the American flag could simply produce a pseudoflag - a flag which to the casual observer watching the burning would appear to be an American flag, but which might have 52 stars and/or 14 stripes - the burning of which could not under this amendment be criminalized since the object is not in fact the "Flag of the United States."

Another possibility would be for a protester to burn a large photograph of a flag, or a flag-shaped cloth upon which the stars and striped appear on only one side - neither of which is a "flag," but the burning of which would arouse the same strong feelings as the burning of a true flag.

Furthermore, even if a protester burned a genuine American flag, he could suggest at trial that what was really burned was just a pseudoflag with 14 stripes. If the object were completely consumed in the flame, a prosecutor probably could not prove to the contrary; i.e., that the object burned to ashes was in fact a true American flag.

Trying to draft an amendment to cover all these possibilities - e.g., "The Congress and the States shall have power to prohibit the physical desecration of the Flag of the United States, and/or any object which might appear to a casual observer to be an American flag, or the desecration of which would likely arouse the same strong feelings in a casual observer - would be very awkward if not legally impossible under Supreme Court's ruling in Texas v. Johnson.

Stripping an American citizen of his citizenship for desecrating a flag, or for any other offense, would be even more difficult. Section 1 of the 14th Amendment clearly provides that: "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." Once a person has acquired his citizenship - whether by birth or naturalization - he is constitutionally entitled to it, and it cannot be revoked even for the most serious of crimes.

As the U.S. clearly proclaimed in 1967 in Afroyim v. Rusk "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."

Subsequently, in Vance v. Terrazas, all of the justices agreed.

So, even those who might support the sentiments expressed by Trump may have to agree that it is virtually impossible to achieve this result.

Posted by: LawProf John Banzhaf | Dec 1, 2016 8:25:51 AM

PaulB - as I understand it, the bill that Clinton introduced was modeled closely on cross-burning laws, and would only apply to "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". Now, that still sounds like a bad law to me, and one I'd not support. But, it's pretty clearly different from what Trump was tweeting about, and attempting to suggest that they are the same seems either ill-informed or like it's meant to confuse to me.

Posted by: Matt | Nov 29, 2016 8:32:25 PM

Republicans control Congress now & wanted to give credit where credit is due there to those who I otherwise would oppose.

I'm sure some Democrats, as they do in other cases, will support bad legislation. See, e.g., those that signed on to DOMA. But, if we want to reference that bill, let's note that it wasn't merely for "flag burning." And, of course, nothing about removing citizenship. This doesn't erase I find such legislation offensive.

Posted by: Joe | Nov 29, 2016 3:40:49 PM

Joe, Do you think that some principled liberals will follow the lead of Hillary Clinton who introduced a bill in 2005, sixteen years after the 5-4 Scalia decision, to have a one year sentence for flag burning?

Posted by: PaulB | Nov 29, 2016 2:45:43 PM

A reporter flagged that it was timed to a FOX story involving flag burning.

But, his use of outrageous statements to focus the news on that as compared to other matters is something to be concerned about too.

As to legislation, I reckon we will see some principled Republicans opposing it. A certain sector of the modern conservative movement goes with St. Scalia on the matter.

Posted by: Joe | Nov 29, 2016 2:00:05 PM

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