President-Elect Trump let loose a midnight Trumpertantrum over Flag-Burning last week, and it has ignited debated on an issue we have not addressed since 2006. The resulting debate has been absolutely fascinating to watch. Flag-Burning is a topic that immediately evokes raw emotion, with neither side of the aisle owning either side of the issue, causing strange bedfellows, and even stranger enemies. Before you make your decision on where you stand, it is important to educate yourself on the issue.
One thing to keep in mind, as you read this article, is that the Constitution rules all laws in our great land. This is a special document that lays out what rights we have against ambitious, over-zealous lawmakers who would seek to make laws that restrict our individual rights. Put quite simply, the constitution is there to protect our FREEDOMS, not our FEELINGS!
Now, on to Trump’s Tweet, and the issues it covered:
- Removing someone’s citizenship for burning an American flag
- Putting someone in jail for burning an American flag
Let’s touch on the first point briefly, and move on. Removing someone’s citizenship is an absurd idea that has been widely panned by legal experts across the country. While there are some (extremely weak) arguments for removing citizenship from those who went through the Naturalization process, there are virtually no legitimate legal experts who would support removing a Natural Born Citizen’s citizenship status. On this point, we can assume that Trump would lose any possible challenge in the Supreme Court.
On the second point, the last time that this type of law was proposed is when Hillary Clinton proposed the Flag Burning Act in 2005. It was read twice in the Senate, and never even voted on. The reason is was never voted on, is because it was clearly unconstitutional. The Supreme Court has ruled (twice) that burning an American Flag is protected under Free Speech in the First Amendment. This is settled law. Beyond that, it would take a constitutional amendment to make burning the flag illegal.
Now, passing a constitutional amendment banning Flag-Burning has been tried 6 times in the last 21 years, most recently in 2006, when it was narrowly defeated. On this issue, the public has typically polled between 50% and 60% in favor of banning Flag=Burning, however those numbers quickly drop to the 30’s when it is made clear that the constitution would have to be amended in order for it to happen. The public, along with Congress, typically gets cold feet whenever you try to change the constitution to restrict rights, instead of expand them (remember how well prohibition went for us?).
In fact, if you remove the amendments that have been later repealed, or amendments dealing with presidential terms, congressional salary, electoral college, sovereign immunity, and such, there have only been seven additional amendments passed since the Bill of Rights was enacted (225 years ago) which affect our individual constitutional rights. Six of those amendments have expanded our rights (making slavery illegal, giving women the right to vote, etc), and only one arguable reduced our rights (when the government approved a personal Federal Income Tax, which I’m sure we are all really thankful for).
Why are Americans so prude when it comes to changing the constitution to reduce rights? Well, let’s start with the fact that there are over 5,000 Federal laws restricting our rights today, and over 100,000 Federal Regulations that can be criminally enforced. On top of that, there are around 40,000 laws passed every year when you start including states and municipalities into the number. The bottom line is that the constitution is, and has always been, a document to protect our individual rights. It has never been, and never should be, a document full of amendments to restrict our rights, or else it could swell to being the size of the exploding federal government.
The constitution is the document upon which these 40,000 laws each year must use as a guide so that our rights are not trampled on by power-hungry politicians looking for a hot topic to put their name on. The constitution is special, something that needs to rise above emotional political arguments, and needs to continue to be a politics-free zone.
On the issue of Flag-Burning, I can tell you that I get physically ill when I see someone burning an American flag. It elicits the same response from me as when I see blatant racism, sexism, bullying, or other despicable acts. But, when it comes to amending the constitution, I have to remember that it is there to protect my FREEDOMS, not my FEELINGS!
If so many people are against it, why should it remain legal?
This is an interesting question, but an important one. Think back to times in our history when this was the case about other areas of the law. In the 1800’s, there was wide agreement that African-Americans should be property. Does that mean that at that time, it was right to have slaves, just because there was wide agreement? For over 120 years in our history, women did not have the right to vote because the majority of America thought they were not capable of weighing in. Was that the right decision, right up until public opinion changed, or was that just plain wrong the entire time? More recently, couples in homosexual relationships were not allowed to marry the partner of their dreams because it made most of the country uncomfortable. They lived for 200 years without that right, should it have been constitutionally banned right up until public opinion changed, or was that a right these U.S. Citizens should have had the entire time?
In fact, the one notable time where our individual constitutional rights were directly restricted through an amendment was when the government passed prohibition, making alcohol illegal. This failed experiment of using the constitution to restrict rights, instead of ensure them, lasted only 14 years before it was repealed (and it remains the only amendment ever to be repealed after it was passed).
The point is that public opinion changes, the majority opinion changes, and the enlightenment of a society changes over time. While we all may get sick to our stomach when we see an American flag on fire, allowing Free Speech to be restricted is a dangerous game. Free speech was so important to the Founders, it was put into the very first amendment in the bill of rights. If we pass a bill, or amendment, banning Flag-Burning, what comes next? Does offensive swearing become illegal? What about offensive hand gestures? I am sure there are dirty looks that we all wish we would never see again, perhaps we should ban certain facial expressions that offend us too?
The issue is not whether burning an American flag should be protected, it’s about whether we want to start letting power-hungry publicity hounds in congress restrict our constitutional rights because of what the polls say, or how people react to an issue on twitter. The constitution is a special document that is meant to protect our rights, not restrict them.
So, go ahead and burn the American flag if you want to, so long as you keep your matches away from our constitution.