Donald Trump is still calling for a punishment that violates the Constitution: jailing people who burn the American flag. It’s been one of the Republican presidential nominee’s consistent proposals this election cycle.
Trump just pushed the idea again Monday while speaking in Detroit to the National Guard Association of the United States. “You burn an American flag, you go to jail for one year,” the former president said, adding: “We gotta do it. … They say, ‘Sir, that’s unconstitutional.’ We’ll make it constitutional.”
The “they” who said that’s unconstitutional was a Supreme Court majority that included conservative icon Antonin Scalia. That hasn’t stopped Trump from advocating the idea after protests outside the Israeli consulate during the Democratic National Convention in Chicago last week and in Washington, D.C., last month during Israeli Prime Minister Benjamin Netanyahu’s congressional address.
As for “mak[ing] it constitutional,” we were reminded last month how hard it is to amend the Constitution when President Joe Biden proposed an amendment in light of the Supreme Court’s immunity ruling in Trump v. United States. Of course, as we saw in the immunity case, an easier route to accomplish Republican legal goals is by going through the justices themselves — though there isn’t a flag-burning case before the high court currently presenting that opportunity. Subscribe to the Deadline: Legal Newsletter for updates and expert analysis on the top legal stories. The newsletter will return to its regular weekly schedule when the Supreme Court’s next term kicks off in October.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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