When protesters outside the White House set fire to Old Glory a couple of weeks ago, President Trump took to Twitter and called on Congress to “do something about the lowlifes that burn the American flag.”
At his rally in Tulsa a few days earlier, he had suggested a specific penalty: “If somebody wants to burn the American flag and stomp on it, but just burn it, they go to jail for one year.”
The president might be surprised to learn that there is a well-known Democrat who for years led a fight in Congress to do just that. He was a senator from Delaware and chairman of the Judiciary Committee. His name is Joe Biden.
After the Supreme Court in 1989 struck down a Texas law against flag desecration and upheld it as a repugnant but constitutionally protected act of free speech, Biden led a push for legislation that he said would get around the high court’s objections.
In a July 18, 1989, speech on the Senate floor, Biden said the flag is “a national symbol of unity and we need unity in this country because we are so diverse. Symbols are important. . . . We have a symbol, unlike the court’s inability to recognize it, a symbol that is needed to unite this nation, this diverse nation, a symbol is the flag.” Under Biden’s legislation, anyone who mutilated, defaced, burned or trampled upon a U.S. flag would be fined as much as $1,000 or sent to prison for up to a year — or both.
Biden said he would also support a constitutional amendment to make flag burning illegal, but that his measure was a quicker means of achieving the same end.
A version of Biden’s legislation passed Congress and became law. On May 14, 1990, the day the Supreme Court heard oral arguments in a case challenging its constitutionality, Biden held a news conference and declared the government has a “legitimate interest” in protecting the flag. The court struck down the law, citing the First Amendment’s protection of free speech.
Biden was undeterred. As late as 2006, near the end of his 36 years in the Senate, he voted in favor of a measure that would have imposed fines of as much as $100,000 and a year in prison for anyone who would “intentionally threaten or intimidate any person or group of persons by burning, or causing to be burned, a flag of the United States.”
That 2006 legislation was, again, offered as an alternative to a constitutional amendment. There may also have been some posturing for the upcoming 2008 presidential race involved. Among the anti-flag burning measure’s co-sponsors was then-Sen. Hillary Clinton (D-N.Y.), and then-Sen. Barack Obama (D-Ill.) also voted for it.
Is this still Biden’s position? “This is a long-settled constitutional question, with the Supreme Court ruling that flag burning is free speech. For Donald Trump to try to politicize the issue is just that: politics,” Biden campaign spokesman Andrew Bates told me. He added that Biden does not support a constitutional amendment to ban flag burning.
All of this might seem like a long-ago argument over hypotheticals were it not for the degree to which symbols — flags, statues, monuments, the names of military bases — have moved to the forefront of the 2020 presidential campaign. The question of how far protesters should be allowed to go in expressing their views could hardly be more relevant.
The weaponization of patriotism against Democratic presidential candidates is a well-thumbed page of the Republican playbook, going at least as far back as George H.W. Bush’s attacks on his 1988 rival, Michael Dukakis, for vetoing a 1977 state bill that would have required teachers to lead schoolchildren in reciting the Pledge of Allegiance. But no one in memory has used it as aggressively as Trump, who throws around charges of “treason” with abandon.
On Wednesday, Trump retweeted a video put together by Senate Republicans that began with an image of a U.S. flag on fire and continued with more of protesters pulling down statues. “Since Democrats won’t speak out against the destruction happening in liberal cities across America . . . We will,” the Republicans wrote.
For Biden this is all tricky territory. While his history on the flag burning issue is at odds with the Supreme Court’s view of the First Amendment — and that of civil libertarians — it will make it harder for Trump to pin the former vice president as being in step with what the president terms liberal “lowlifes.”
In his news conference on Tuesday, Biden threaded the needle on the question of taking down monuments, suggesting that while those commemorating traitorous Confederate leaders belong in museums, those to the imperfect men who founded the republic should stay up.
“There is a difference between reminders and remembrances of history,” he said. “The idea of comparing whether or not George Washington owned slaves or Thomas Jefferson owned slaves, and somebody who was in rebellion committing treason . . . trying to take down the union and keep slavery. I think there’s a distinction.”
That is reasonable, and, more importantly, it is right. Symbols — whether they be flags or monuments — can always be replaced. The same cannot be said of the values of which they are meant to remind us.