Trump v the Constitution

The Times also reports on Trump’s jolly tweet about how he’d like to punish people who burn flags.

“Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!” Mr. Trump wrote in a 6:55 a.m. Twitter post.

Mr. Trump wrote the post shortly after Fox News aired a segment about a dispute at Hampshire College in Massachusetts, which removed the American flag from its campus flagpole after protests over his election victory; during one demonstration, someone burned a flag.

Ah, so that’s what he’s doing – watching Fox News and blurting out tweets in response to what he sees.

Even if Mr. Trump could persuade Congress to enact a criminal statute, a dramatic shift in the balance between government power and individual freedom, anyone convicted and sentenced under it could point to clear Supreme Court precedents to make the case for a constitutional violation.

The obstacles include the precedent that the Constitution does not allow the government to expatriate Americans against their will, through a landmark 1967 case, Afroyim v. Rusk. They also include a 1989 decision, Texas v. Johnson, in which the court struck down criminal laws banning flag burning, ruling that the act was a form of political expression protected by the First Amendment.

Well, sure, but what’s that got to do with Trump? He’s just been elected absolute dictator, hasn’t he? He certainly seems to think so.

David D. Cole, a Georgetown University law professor who co-wrote the Supreme Court briefs in the flag-burning case and who is about to become national legal director at the American Civil Liberties Union, said he wondered if Mr. Trump’s strategy was to goad people into burning flags in order to “marginalize” the protests against him. But he also called Mr. Trump’s proposal “beyond the pale.”

“To me it is deeply troubling that the person who is going to become the most powerful government official in the United States doesn’t understand the first thing about the First Amendment — which is you can’t punish people for expressing dissent — and also doesn’t seem to understand that citizenship is a constitutional right that cannot be taken away, period, under any circumstances,” he said.

“Troubling” is putting it mildly.

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