Donald Trump told Fox News that “stupid people” would argue that punishing people for desecrating the American flag is unconstitutional. One notable figure who’d fail Trump’s constitutional test is Antonin Scalia, the late Supreme Court justice revered by conservatives whose seat Trump filled with his first high-court appointee, Neil Gorsuch.
The subject came up in the context of people burning flags at protests of Israeli Prime Minister Benjamin Netanyahu’s congressional address in Washington, D.C., on Wednesday. Trump said on “Fox & Friends”: “I think you should get a one-year jail sentence if you do anything to desecrate the American flag. Now, people will say, ‘Oh, it’s unconstitutional.’ Those are stupid people.” (Vice President Kamala Harris, who’s poised to run against Trump in November’s presidential election, issued a statement condemning flag-burning, Hamas and antisemitism but didn’t call for jailing flag burners.)
The Supreme Court addressed the issue in the 1989 case Texas v. Johnson. Liberal Justice William Brennan wrote the 5-4 majority opinion, joined by Scalia, that said: “After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not.”
And while Scalia would have disagreed with Trump’s legal judgment, the justice was a proto-Trumpian type who likely would have agreed with the former president’s instinct. Indeed, Scalia later said in public remarks that “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.”
That was before the Supreme Court’s recent immunity ruling for Trump that did make presidents more like kings. But that doesn’t change the constitutionality of flag-burning — at least until the Supreme Court says so.
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