Trump got on his Twitter machine the other morning and posited that people who burn the American flag — assuming he’s not talking about the Boy Scouts who respectfully burn them ceremoniously when the flags have outlived their usefulness — should either lose their citizenship or go to jail.
As bizarre as those choices are, and as infuriating both the act and Trump’s reaction to it may be, it is settled law via the U.S. Supreme Court that burning the American flag as an act of protest is protected by the First Amendment.
In a 5-4 decision in 1989, the Supreme Court upheld the right of protesters to burn the flag, with the late Justice Antonin Scalia siding with the protesters. He later said he based his ruling on a “textual” reading of the Constitution.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said in 2015 in Philadelphia. “But I am not king.”
The larger question is why did Trump bring it up? As President Jed Bartlet once noted, is there an epidemic of flag burning going on that we’re unaware of? Anyone? Bueller?
It’s more likely that Trump is trying to distract our attention from the current mishigos that is going on during his transition including the hiring of neo-Nazi ideologues and appointing unqualified but rich donors to cabinet posts. This flag-burning tweet is designed, pun intended, to inflame his white GOP base and deflect their attention from his once-vaunted promises to drain the swamp while he brings in fresh alligators.
In short, by bringing up the occasional act of a scruffy-bearded weirdo burning a flag, he hopes we will ignore the metaphorical destruction he’s doing to the Constitution.