It a scene that is likely to prove quite familiar during a Trump presidency, Americans woke up Tuesday to discover that the incoming president took to Twitter to expose his ignorance of or disregard for the Constitution.
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
Criminalizing flag burning is unconstitutional, at least when the flag is burned as a political statement. As the Supreme Court explained in Texas v. Johnson, “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Moreover, there is no indication “either in the text of the Constitution or in our cases interpreting it . . . that a separate juridical category exists for the American flag alone.” If someone chooses to express a political message through flag burning, even if that message is contempt towards the United States, the Constitution protects that speech.
Justice Antonin Scalia, who Trump has held up as a model for his Supreme Court nominee, was in the majority in Johnson.
But even setting aside Trump’s unconstitutional call to criminalize flag burning, which became a staple of American conservative politics long before Trump emerged as a presidential candidate, Trump is calling for something even more extraordinary. He wants to strip citizenship — and with it, voting rights — from political dissidents. Federal law does permit Americans to lose their citizenship after “committing any act of treason against, or attempting by force to overthrow, or bearing arms against, the United States,” but flag burning is a far cry from treason or armed rebellion. It is a political statement, and democracy depends on the free expression of political ideas.
The president-elect of the United States has proposed stripping a political protester’s very status as an American. In the process, he would take away that person’s ability to vote — and thus to vote for someone other than Donald Trump. Today, Trump proposes this consequence for a very specific category of speech that most Americans view as odious. But once a person’s voting rights can be made contingent upon their beliefs, or their silence, then elections become increasingly meaningless.