“All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!” Trump tweeted.
This isn’t a new position for the president, who a few weeks after the 2016 election tweeted: “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!”
The Supreme Court ruled in 1989 that flag burning was protected by the First Amendment after a protester was convicted of burning an American flag outside the 1984 Republican National Convention in Dallas. The following year, the nation’s highest court reaffirmed its ruling when it struck down legislation passed by Congress to make flag burning illegal.
“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,” Justice Antonin Scalia said at an event in Philadelphia in 2015. The late justice, an idol of conservatives, cast the deciding vote in determining it was constitutionally protected speech to burn the flag.
The emotionally charged question of burning the flag in protest has long divided Americans. Some, like Trump, say doing so is disrespectful to people who fought for and died in service to the nation, while others say flag burning is exactly the kind of freedom patriots fight to protect.
As Michael Douglas put it at the end of the 1995 romantic comedy “The American President”: “You want to claim this land as the land of the free? Then the symbol of your country can’t just be a flag; the symbol also has to be one of its citizens exercising his right to burn that flag in protest.”
Congress voted at least half a dozen times on a flag-burning amendment between 1995 and 2006 but never got the two-thirds support needed in the Senate. The closest it came was in 2006, when it fell one vote shy.
Even if a constitutional amendment made it through Congress, it would require the support of 38 states to be ratified. To even get to that point, Trump would have to first convince a longtime critic of making flag burning illegal: Senate Majority Leader Mitch McConnell (R-Ky.).
McConnell, who decides which bills get called up for a vote in the Senate, was one of the deciding votes that killed the amendment in 2006. He wrote an op-ed that year defending his position:
“I don’t share the slightest shred of sympathy with any who would dare desecrate the flag. … They deserve rebuke and condemnation — if not a punch in the nose,” he said.
“I revere the American flag as a symbol of freedom. But behind it is something larger — the Constitution,” he continued. “The First Amendment, which protects our freedom of speech, is the most precious part of the Bill of Rights. As disgusting as the ideas expressed by those who would burn the flag are, they remain protected by the First Amendment.”