Analysis: Trump tweet on flag burning contradicts Supreme Court ruling

Posted at 12:10 PM, Nov 29, 2016

By 6:55 a.m. Tuesday, President-elect Donald J. Trump had used his favorite bully pulpit, Twitter, to issue one proclamation recommending two propositions long held to be unconstitutional by the Supreme Court.

“Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!” Trump Tweeted. Trump did not say what inspired his tweet.

The Supreme Court has ruled that laws prohibiting or punishing flag burning are unconstitutional as is stripping away American citizenship as a criminal punishment.

In 1958, the Supreme Court in Trop v. Dulles ruled that a provision of the Nationality Act of 1940 that mandated the forfeiture of citizenship for certain crimes was an unconstitutional violation of the Eight Amendment’s ban of cruel and unusual punishment.  The court again deemed the forfeiture of citizenship to be unconstitutional in a 1967 case, Afroyim v. Rusk.

Burning the flag as a form of protest, of course, has been more recently debated but adjudicated just as firmly by the Supreme Court.

In a 1989 case, Texas v. Johnson, the Supreme Court ruled that a Texas law banning flag burning was an unconstitutional violation of the freedom of speech under the First Amendment. Later that year, the U.S. Congress passed a federal Flag Protection Act. The Supreme Court swiftly declared that law unconstitutional as well in United States v. Eichman.


Justice Antonin Scalia, whom Trump has cited as a role model for his own judicial appointments, ruled with the majority in both cases. Indeed, only months before he died, Scalia said in a speech, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” 

Twitter immediately exploded with jeers, cheers and judicial citations. But Trump’s spokesman, Jason Miller, defended the president-elect on CNN.  “Flag burning should be illegal,” Miller said.

This isn’t the first time Trump has suggested imposing new strictures on protected speech. He has talked about easing up the libel laws, for example, and creating a blacklist of reporters unfriendly to his cause.

In ordinary times, a tweet or casual remark like this from a president or president-elect would have been considered a massive gaffe and an outrage. But not in today’s New Normal. It is fair to say that no one knows how seriously to take the president-elect’s breakfast tweet. Is this his long-held belief? Does he intend to reintroduce legislation banning flag burning or even a constitutional amendment? Is stripping citizenship actually a criminal punishment Trump intends to resurrect?

There are no immediate answers. Once again, the country is left to guess. Americans and the whole world are long accustomed to weighing the words of the American president very heavily. New customs might have to arise for this New Normal.