President-elect Donald Trump touched off a heated battle Tuesday over the limits of the First Amendment when he tweeted that flag burners should be stripped of their citizenship or jailed.
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
His tweet, “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!” was met with widespread condemnation and both Republicans and Democrats said Tuesday that the constitutional amendment needed to make Trump’s proposal possible is a no-go.
“I do not support or believe in the idea of people burning the American flag, but I support the First Amendment,” House Majority Leader Kevin McCarthy (R-Texas) told reporters. “In my district, we honor the flag, we don’t burn the flag. I don’t understand why someone would want to burn the flag.”
The Hill reports,
Others were more strident:
“Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment,” tweeted Rep. Justin Amash (R-Mich.), a member of the conservative House Freedom Caucus who was elected as part of the Tea Party wave — a movement known for its originalist interpretations of the Constitution.
It wasn’t immediately clear what prompted Trump’s missive. The timing of the tweet coincided with a 6:25 a.m. Fox News segment about Hampshire College students burning the American flag two days after the election to protest his victory.
Trump transition spokesman Jason Miller immediately doubled down on the tweet, saying repeatedly on CNN, “Flag burning should be illegal.”
Some argued that the tweet was an intentional effort to distract the media from covering his web of international business dealings — while others said it demonstrated the president-elect’s tendency to obsessively watch and react to cable news.
But not long ago, the idea of amending the Constitution to make desecrating the American flag a crime was a widely popular idea — amongst both Republicans and Democrats.
Two 5-4 Supreme Court decisions — one in 1989 and one the following year — affirmed that the First Amendment protects citizens’ right to burn the flag as an expression of “symbolic speech.” The 1990 decision, United States v. Eichman, struck down a subsequently-enacted law outlawing burning the flag, passed by Congress in response to the 1989 decision.
Congress has several times since attempted to pass a resolution amending the Constitution to allow prohibition of the act.
In 2006, the Senate fell just one vote short of the two-thirds majority needed to send a resolution amending the Constitution to the states to ratify. Only three Republicans —including now-Senate Majority Leader Mitch McConnell (R-Ky.) — voted against it. The House had approved the measure 286 to 130 the year before.
In 2000, the Senate fell only four votes short.
In 2015, an identical measure was introduced by Sen. David Vitter (R-La.) in the Senate and Rep. Steve Womack (R-Az.) in the House.
A separate failed attempt to criminalize flag burning by statute, in 2006, was supported by then-Sen. Hillary Clinton. It failed 64-36.
There is little recent polling to suggest how widespread public support for outlawing flag burning actually is, but older data suggests that the issue divides Americans.
Read more at The Hill
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