Tuesday, November 29, 2016

Trump proposes an unconstitutional ban on flag burning, revoking citizenship

Posted By on Tue, Nov 29, 2016 at 7:04 AM

trump_tweet.png

Donald Trump, the president-elect of the United States, this morning made a public statement, via Twitter, that the flag burning should be disallowed by law: "there must be consequences — perhaps loss of citizenship or year in jail!"

Such a ban would be unconstitutional, as the Supreme Court found that it would violate the First Amendment in Texas v. Johnson. Of course, plenty of people support a ban on flag burning anyways; that includes hack politicians from both parties who have voted for bans over the years. What makes Trump's statement particularly irresponsible and noxious is something entirely new: the idea of stripping citizenship as punishment. These are the tools of the authoritarian. The frequency with which Trump makes irresponsible statements should not blind us to the danger of the statements he makes. This is a vile attack on free expression, civil liberties, and democracy, floated by the most powerful leader in the world.

There is a line of thinking that Trump's tweets are simply a distraction, and we're supposed to pretend that they're no big deal. As I outlined yesterday, I find the notion that his public statements should be ignored to be ludicrous. Again, he is now the president-elect of the United States, and his public statements matter. Indeed, one of the reasons Trump appears unfit for office is that he will abuse the power of the bully pulpit to make unhinged and irresponsible statements. We can walk and chew gum at the same time: The media can and must cover attempts to dismantle the social safety net, conflict of interest scandals, and so on — but of course when the leader of the free world speaks, people listen. There's no upside and no honor to putting our fingers in our ears.

From the Texas v. Johnson decision (joined by the late Antonin Scalia):

We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag — and it is that resilience that we reassert today.

The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to bee applied is more speech, not enforced silence.

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