The flag-burning flip-flopper

The Washington Post reports unsurprising news:

President-elect Donald Trump, who on Tuesday suggested jailing or stripping the citizenship of those who burn the American flag, offered a different view less than six months before joining the presidential race.

During a Jan. 8, 2015, appearance on CBS’s “The Late Show,” Trump told then-host David Letterman that he was “100 percent right” when Letterman said that flag burning represented freedom of expression and that people should be allowed to do so.

“I understand where you’re coming from,” Trump told Letterman.

Trump’s transition team did not immediately respond to a request for comment on Wednesday.

Trump’s appearance with Letterman came as the businessman and reality television star was still contemplating a presidential bid. He would formally join the crowded Republican field in June 2015.

The first segment of the interview touched on Trump’s political ambitions, his disdain for Obamacare and his hair.

During the second segment of the interview, Letterman and Trump started talking about the then-recent terrorist attacks at the office of the French satirical weekly newspaper Charlie Hebdo in Paris. The publication was well-known for publishing material that mocked Islam.

As the conversation turned to freedom of expression, Letterman brought up flag burning.

“Here’s the example that I’m always proud of as an American,” the host told Trump. “People, to demonstrate, they think, we’re really gonna stick it the United States. ‘We’re going to set fire to the flag.’ ”

“Yeah, right,” Trump said.

“And people get — ‘Oh my God!’ ” Letterman said. “Well, no. If that’s how you feel, go ahead and burn the flag. Because this country is far greater than that symbol, and that symbol is standing for freedom of expression.”

“Sure. You’re 100 percent right,” Trump said, noting that Letterman seemed worked up about the issue. “I understand where you’re coming from. It’s terrific.”

On Tuesday morning, Trump took to Twitter to say that “nobody should be allowed to burn the American flag.”

If they do, Trump wrote, “there must be consequences — perhaps loss of citizenship or year in jail.”

The president-elect’s tweet appeared to have been inspired by news coverage of an episode at Hampshire College in Amherst, Mass., where students burned a flag in protest of Trump’s election victory over Democratic nominee Hillary Clinton.

Well, Eugene Volokh reports …

Contrary to President-elect Donald Trump’s tweet, even if flag-burning weren’t protected by the First Amendment (and it is), you couldn’t strip people of their citizenship for it.

Let’s begin with the constitutional text, here from section 1 of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Once you have American citizenship, you have a constitutional entitlement to it. If you like your American citizenship, you can keep your American citizenship — and that’s with the Supreme Court’s guarantee, see Afroyim v. Rusk (1967):

There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.

(Special bonus in Afroyim: a cameo appearance by a Representative Van Trump in 1868, who said, among other things, “To enforce expatriation or exile against a citizen without his consent is not a power anywhere belonging to this Government. No conservative-minded statesman, no intelligent legislator, no sound lawyer has ever maintained any such power in any branch of the Government.”) In Vance v. Terrazas (1980), all the justices agreed with this principle.

Now, as with almost all things in law — and in life — there are some twists. Naturalized citizens can lose their citizenship if they procured their citizenship by lying on their citizenship applications; the premise there is that legal rights have traditionally been voided by fraud in procuring those rights. And citizens can voluntarily surrender their citizenship, just as people can generally waive many of their legal rights; this surrender can sometimes be inferred from conduct (such as voluntary service in an enemy nation’s army), if the government can show that the conduct was engaged in with the intent to surrender citizenship.

But flag-burning, whether or not it is intended to express contempt for the United States (and burning an American flag, like flying the Confederate flag, can have many possible intentions), is generally not accompanied by an intent to renounce U.S. citizenship, nor is it generally evidence of any such intent. A college student’s expression of contempt for the college’s administration, or the college as a whole, doesn’t mean an intent to drop out of the college — it’s entirely consistent with an intent to make the best of a bad situation, or even to take advantage of the benefits provided by an institution that one despises. One might consider such an attitude dishonorable, depending on the circumstances, but it’s very plausible that the contemptuous student would have that attitude. That is even more clearly so as to a citizen’s expression of contempt for the current American administration, or even America as a whole (if that’s the flag-burner’s attitude), given how costly surrender of citizenship would be, especially when one lacks another country that will take one in.

So even if flag-burning could be made criminal (and, I note again, it can’t be), the 14th Amendment protects the flag-burner’s citizenship, just as it protects other criminals’ citizenship.

So what (beyond Trump’s usual position change of the moment on the issue of the moment) is going on? The Post also reports:

The Republican president-elect’s tweet rattled civil liberties and legal experts, who were quick to note that the Supreme Court ruled long ago that flag desecration is considered free speech and that it is unconstitutional to punish someone by stripping their citizenship.

But whatever Trump had in mind, the president-elect’s outburst underscored a key aspect of his three-week-old transition: He is continuing to cater to his base — the largely white, working-class voters that propelled him to the White House — with relatively few overtures to the majority of voters who cast ballots against him.

“Trump won rural America, where support of the flag is a big issue,” said Scott Reed, a longtime Republican strategist who served as Bob Dole’s campaign manager in 1996. “A lot of those homes that had Trump signs out front were also flying American flags. This is clearly part of his base politics.”

The same dynamic will play out Thursday when Trump kicks off a “Thank You Tour” with a campaign-style rally of supporters in Ohio. Aides have suggested the tour will include other states where the Republican prevailed, including some traditionally Democratic ones where he won in part by driving up the rural white vote.

Since defeating Hillary Clinton in electoral college votes on Nov. 8, Trump has made some efforts to reach out beyond his base with Cabinet picks that have pleased the GOP establishment. Those include Elaine Chao, a former labor secretary and the wife of Senate Majority Leader Mitch McConnell (R-Ky.), whom Trump announced as his transportation secretary on Tuesday.

But there has been little in Trump’s actions so far to suggest that he is courting the Democrats who voted against him, nor working to shore up an approval ranking still in negative territory. He has instead spent recent days making unfounded claims about illegal votes costing him the popular vote against Clinton and attacking CNN and other media for how they cover him — the kind of rhetoric that fired up his supporters during a bruising campaign season in which he also rallied on illegal immigration and lost manufacturing jobs.

“This is going to be one of the new dynamics of this incoming administration,” said Michael Steele, the former chairman of the Republican National Committee. “It speaks to how Trump is able to generate a national conversation in 140 characters. . . . The polite society part of Washington is going to be scratching their heads and sometimes flat on their backs.”

Tuesday was also not the first time Trump has suggested a narrower view of the First Amendment and the rights it affords. During the campaign, he also blacklisted reporters from The Washington Post and other news outlets who fell out of his favor and suggested that he would “open up” libel laws to make it easier to sue the news media.

In 1989, the Supreme Court struck down on First Amendment grounds a Texas statute banning flag-burning. Congress responded swiftly by passing the Flag Protection Act of 1989 — a law that was invalidated a year later by another Supreme Court ruling.

Among the justices who supported the right burn a flag in both cases was the late Antonin Scalia, whom Trump has said is “in the mold” of those he’d like to appoint to the court.

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said an event last year. But, he said: “I am not king.”

Nearly a half-century ago, in 1967, the court also ruled that citizens cannot be deprived of their citizenship involuntarily.

Aware of those rulings, Republican leaders in Washington were loath to offer support for Trump’s view. McConnell said the Supreme Court had spoken on the subject of flag-burning, adding that the Constitution protects even “unpleasant speech.”

During a television appearance shortly after Trump’s tweet, House Majority Leader Kevin McCarthy (R-Calif.) suggested that Congress is unlikely to revisit the issue of a constitutional amendment to overturn the court’s rulings.

“We have a First Amendment right, but where I come from, you honor the flag,” McCarthy said on MSNBC’s “Morning Joe.” “If someone wanted to show their First Amendment right, I’d be afraid for their safety, but we’ll protect our First Amendment.”

Trump transition spokesman Jason Miller defended his boss’s position during an appearance on CNN.

“Flag-burning should be illegal,” he said on CNN’s “New Day.”

The issue appeared to be an uncomfortable one for some in Trump’s party, including Sen. John McCain (R-Ariz.).

McCain initially told reporters on Capitol Hill that he thinks there should be “some punishment” for flag-burning despite his respect for the court rulings. But McCain, the chairman of the Senate Armed Services Committee, grew testy as reporters continued to pepper him with questions about Trump’s tweet.

“My time is devoted to trying to make sure this nation is secured, not to comment on every comment of Mr. Trump,” McCain said.

The flag-burning debate has been rekindled a number of times in the past quarter-century. A 2005 bill sponsored by Clinton, then a senator from New York, would have outlawed flag desecration when the intent was found to be a threat to public safety. Violations would have been punishable by up to a year in jail and a $100,000 fine.

A year later, the Senate narrowly failed to approve a constitutional amendment banning flag-burning, with McConnell among those voting in opposition.

On Tuesday, several liberal advocacy groups voiced dismay that Trump was seeking to revisit those debates.

“One of the founding principles of our nation is tolerance of peaceful protest,” said Lee Rowland, a senior staff attorney for the American Civil Liberties Union.

In 2011, a State of the First Amendment survey found that 39 percent supported a constitutional amendment to make flag-burning illegal while 58 percent opposed it. The survey presented brief arguments for both positions before posing the question.

Earlier polls that did not explicitly mention First Amendment issues found more support for making flag-burning illegal. In a 2006 Gallup-USA Today poll, 56 percent said they would favor a constitutional amendment, while 41 percent said they were opposed.

Reed, the longtime Republican consultant who now works for the U.S. Chamber of Commerce, said Trump was reflecting the views of his base on the issue.

“This guy’s got his finger on the pulse of the country more than most,” Reed said.

Here’s an interesting rejoinder to Rowland: Is burning the flag peaceful protest? Since at minimum burning the flag is destruction of property, is burning the flag a protest or the equivalent of throwing a brick into an offending organization’s window?

Reed may be correct that Trump is playing to his base. That is why we have a Constitution and Bill of Rights, to protect political minorities from the majority.

i’m not a constitutional scholar, so I don’t know how a bill to ban flag-burning could pass constitutional muster. Scalia knew more about the Constitution than Trump does and certainly respected it more than Trump does.

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