During a 2016 presidential debate, Donald Trump described late Supreme Court Justice Antonin Scalia as a “great judge” and promised to “appoint judges the way Justice Scalia did ”. Trump may not realize that Scalia is one of those “foolish people” who thinks flag burning is protected by the First Amendment.
Last week, as reasonEmma Camp noted that the former president said people who burn the American flag (even their own flag) should go to jail. He reiterated his stance from November 2016, a month after a debate in which he praised Scalia. “No one should be allowed to burn the American flag,” Trump tweeted at the time. “If they do that, there will be consequences – possibly losing their citizenship or [a] One year in jail!
Asked about CNN’s comments, Trump spokesman Jason Miller denied that such a policy was unconstitutional. Miller said burning the flag “is horrific and despicable.” “This should absolutely be illegal.”
during an interview fox and friends Last Wednesday, Trump similarly rejected the argument that flag burning is a constitutionally protected form of expression. “If you do anything that desecrates the American flag, you should be sentenced to a year in prison,” Trump said. “Now, people are going to say, ‘Oh, that’s unconstitutional.'” Those who say that are It’s stupid people.
These “fools” included Justice William Brennan, who wrote the majority opinion in the 1989 case Texas v. Johnson, dismissed the prosecution of Gregory Lee Johnson for burning the American flag during the 1984 Republican National Convention in Dallas. It also included Scalia, who joined Justices Anthony Kennedy, Thurgood Marshall and Harry Blackmun in the opinion.
Scalia took the same position in the 1990 case United States v. Eichmann. The decision overturned the 1989 Flag Protection Act passed by Congress Johnson.
“We know that flag desecration is deeply offensive to many people,” Brennan wrote, again speaking for the majority. “But the same can be said about virulent racial and religious epithets, vulgarity toward the draft Negative and vulgar cartoons [all of which the Court had deemed protected by the First Amendment]. “If there is a fundamental principle of the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself objectionable or objectionable.” Punishing flag desecration weakens what makes this The freedom that marks so revered and worthy of respect.
Scalia later cited flag-burning cases to illustrate how his textualist approach to constitutional interpretation sometimes led him to rule against his personal inclinations. “If it were up to me, I’d put every sandal-wearing, unshaven weirdo who burns the American flag in prison,” he said in a 2015 speech. “But I’m not the king.”
Trump may ignore Scalia’s distinction between what the Constitution demands and what he might prefer, appearing to value only free speech because it protects him and his allies.
