The Corner

Law & the Courts

Unfortunately, Anti-Flag-Burning Laws Are Popular

Donald Trump tweeted this today:

This is a terrible, terrible idea. Putting people in prison for speaking is tyrannical in almost every case. And stripping them of their citizenship is so far off the charts that I’m not really sure where to begin (it’s also unconstitutional: see Trop v. Dulles). That journalists and other political commentators have almost all reacted with horror is a good thing.

But it’s worth pointing out that unless those who are opposed to Trump on this are careful, they’re going to make the same mistake they’ve been making all year (myself included): That is, they’re going to assume that the views held by themselves and their friends are representative of the country at large. 

They’re not.

As it happens, statutes that prohibit desecration of the flag are pretty popular with the public. Indeed, the only reason that no such laws obtain in the United States is that the Supreme Court has struck them all down. Three decades ago, 48 of the 50 states had passed laws prohibiting flag burning, and so had the federal government. Then, in 1989, the Court decided Texas v. Johnson, and in one fell swoop voided each and every one of them.

Was that the end of it? Not on your life. In the aftermath of the Johnson decision, Congress passed another anti-desecration statute, which was then struck down in 1990. And, between 1996 and 2006, Congress routinely tried to pass new laws and/or constitutional amendments. Time and time again, such provisions passed the House easily, only to die on the finish line in the Senate (one such measure was co-sponsored by none other than Hillary Clinton). In 2006, an amendment that would have permitted Congress to ban flag burning came within one Senate vote of being sent to the states. 

I do not relate this history in order to defend Donald Trump. Rather, I bring it up because those who oppose Trump’s idea need to understand the nature of this debate. In some cases it will prove efficacious for Trump’s critics to isolate him. “That guy is out on the ledge,” they will be able to say, and a majority in the country will agree. But on this — or at least on the core question of flag burning — Trump is not outré. On the contrary: He is tapping into a real and strongly-held sentiment that does not break down perfectly along party lines. In 2006, half of Democrats were in favor of a constitutional amendment that would have permitted Congress to legislate in this area (69 percent of Republicans agreed). In both Texas v. Johnson and United States v Eichman, the Court split in peculiar ways, with Scalia and Marshall in the majority and Stevens, O’Connor, and Rehnquist dissenting. As a political question, this ain’t tax reform.

Which is to say that while I am as appalled by Trump’s suggestion as anybody, I can see the trap looming large on the horizon. It is possible that Trump will never return to this matter — that this was an early morning tweet that he’ll have forgotten by lunchtime. But it is also possible that he means it. And if he does, those who believe that he is disastrously wrong will have to do better than say, “but nobody I know is in favor of that.”

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