Republicans Split Over Flag-Burning

“If you burn a flag, you get one year in jail. No early exits. No nothing.” This is what US president Donald Trump announced in the Oval Office in the last week in August. Ever the master media manipulator, America’s communicator-in-chief issued this as an executive order.

An executive order is issued by the president and doesn’t need to be passed by Congress. They are, however, expected to relate to existing law. Trump so far has signed 196. His latest directive, which aims to restore “respect, pride and sanctity” to the US flag, instructs the Department of Justice to investigate instances of burning the nation’s insignia under particular circumstances.

While the practice of flag burning as protest has a long history in the US, dating back to the US civil war, it is not a regular occurrence, and has been constitutionally permitted for decades.

The issue is already creating divisions among Republicans. There are three broad categories of GOP reaction. First, the Maga faithful are unlikely to complain. Unconditional support for their leader is a key trait of this group. And the executive order includes language with guaranteed appeal to those for whom terms such as “American patriots” and “foreign nationals” are predictable triggers. The president has long excelled at rallying his supporters on flag-related matters.

Beyond red-meat-for-the-base appeal, both the executive order and GOP support for it get a little more complex. Traditional conservatives, including Senate majority leader Mitch McConnell, are a group that may have strongly negative feelings about flag burning, but their adherence to the first amendment and associated freedom of expression would generally override this.

Those who hold constitutional principles in high regard are increasingly concerned about a president demonstrating his desire for expansive power. And, the US Supreme Court has clearly ruled on more than one occasion that the act, however distasteful, is constitutionally permitted.

Antonin Scalia, the late Supreme Court justice and noted constitutional textualist, famously stated that “if it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag”. But, he added: “I am not king.” Alongside the more centrist Anthony Kennedy, these justices upheld the right to burn the US flag in the 1989 landmark case of Texas v Johnson, despite Scalia’s personal distaste for the act. In his writings, Scalia differentiated between the form of expression that was flag burning, and an act of insurrection, which, he noted, was “something quite different”. The first amendment, as he understood it, allowed for symbolic political protests, regardless of how offensive such expressions might be to patriotic sensibilities.

Already, analysts have highlighted how the president’s efforts to sidestep the constitution are laden with problems. Executive orders cannot override a Supreme Court ruling. Even Donald Trump should know that.

Getting around current law

What the executive order does attempt to do is to get around the law that allows flag burning. To do so, it focuses on associated crime such as property destruction, open burning violations and disorderly conduct. The attorney general, Pam Bondi, was instructed to pursue cases against those who “incite violence or otherwise violate our laws while desecrating this symbol of our country”. So, when someone is (legally) burning a flag, they may be acting illegally at the same time by, for example, committing a hate crime. And this could trigger prosecution.

Furthermore, the executive order nods to a key flashpoint of the current climate by leveraging immigration law, and potentially facilitating the deportation of non-citizens who engage in flag-burning. Beyond the smoke-filled headlines, what this ruling does is circumvent the core ruling of Texas v Johnson by focusing on the circumstances surrounding any flag burning, rather than the act itself. A further aspect will involve the extent to which the courts could expand existing first amendment exceptions. This can only make for nervous constitutional conservatives.

The third group who mostly reside on the Trumpian side of the partisan fence are libertarians such as Republican senator Rand Paul. In a similar vein to their conservative counterparts, their worldview would sit uncomfortably with the president’s foray into testing constitutional principles, and not standing up for more wide-ranging free speech.

Flags and freedom

Libertarians tend to feel strongly about freedom of expression. And when their president picks a fight with the first amendment for no apparent reason beyond a mention he made of it on the campaign trail, he may end up aggravating more supporters than he pleases.

Writing on Reason.com, libertarian journalist Robby Soave argued that Trump is the “last person who should confuse protected speech with incitement to violence”. He added: “Any administration that purports to care about freedom of speech should easily reach the conclusion that criminalizing provocative yet nonviolent acts of political expression is a violation of this principle.”

For a president who deliberately and controversially appointed “Scalia-like” judges during his first term, his latest executive order seems at odds with this vision. Such inconsistency, for what may involve more Justice Department smoke than actual fire, may not serve the president well if many conservatives remain uncomfortable with the move.

To misquote a famous phrase attributed to Voltaire, the US Supreme Court has repeatedly ruled that whatever a majority of the justices think of those who actually want to burn the US flag, they will all but defend to the death your right to burn it.

The waters are further muddied now that a self-described combat veteran has set fire to the flag in response to the executive order. It is unlikely he is a “sandal-wearing weirdo”. Hence, the president’s patriotic script may end up somewhat singed around the edges.