Jonathan Chait: ‘Trump Wants You to Burn Flags While He Burns Constitution’

Donald Trump, in a seemingly bizarre (even by his standards) tweet this morning:

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:

This is an unusual “issue” for the president-elect to highlight, given the dire conditions he claims the country faces. The odd protester has torched the odd flag every so often for decades. The Supreme Court in 1989 held that burning the flag constitutes political speech, and thus cannot be banned. Republicans have occasionally used the issue as a cheap political stunt, since a majority of the public viscerally opposes flag-burning. To that standard tactic, Trump added the new Trumpian touch of proposing to revoke citizenship for violators, which would make his unconstitutional proposal even more unconstitutional, and also more attention-getting. And he did not send this one in the middle of the night, as he often does, but at 6:55 a.m., a moment probably calculated to seize the morning news cycle.

But why would he choose to pick this strange fight? Here is a case where the common complaint that he is distracting the public from unflattering stories rings true. Proposing a flag-burning ban is a classic right-wing nationalist distraction, and Trump has a number of ugly stories from which to distract: his plan for massive, unprecedented corruption, the extreme beliefs of his appointees, a controversy over a recount that highlights his clear defeat in the national vote.

Trump using this as a distraction aside, the 1989 Supreme Court decision that held flag-burning to be a legal form of First Amendment protest is an interesting one. It was a 5-4 decision, but the split among justice was not along party lines. The majority decision was written by William Brennan, perhaps the staunchest liberal ever to sit on the court, and joined by Harry Blackmun, Thurgood Marshall, conservative Anthony Kennedy, and arch-conservative Antonin Scalia. Dissents were written by conservative chief justice William Rehnquist and liberal John Paul Stevens. Different times.

(Scalia, notably, is Trump’s proclaimed model for the type of justice he plans to nominate to the court.)

Update: Fox News ran a segment on flag-burning at a Massachusetts college half an hour prior to Trump’s tweet. So it probably wasn’t strategic. He just tweets grotesquely unconstitutional thoughts that pop into his head while watching Fox News.

★ Tuesday, 29 November 2016