Unless we wake up from this fever dream, Donald Trump will become president on Jan. 20. This fact makes the president-elect’s tweet from Nov. 29 all the more disturbing. Apropos of nothing, or possibly a Hampshire college controversy, Trump declared with his usual, frantic punctuation “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”
Rare’s Matt Purple correctly noted that politicians declaring that the flag is a uniquely sacred object—so suck it, First Amendment!—is not a position unique to Trump. Sen. Hillary Clinton in 2005 did co-sponsor a bill that would punish flag desecrators with up to a year in jail. Yes, Clinton isn’t even a good liberal, and the outraged liberals flailing over Trump’s tweet have short memories indeed.
Protecting the flag from free expression is exceedingly popular. Polls generally show support for it, or at least support for letting Congress decide (“Congress shall make no law…” be damned). Indeed, people still get punished for flag desecration, in spite of Texas v. Johnson, a 1989 Supreme Court decision that upheld the right to burn the flag as protected speech. This was not the judiciary run amok, this was them reading the First Amendment and acting accordingly, in spite of 48 states having flag-protection laws on the books at that time. Further decisions have backed up the idea that no, the flag isn’t more special than the First Amendment, nor is desecrating it inherently fighting words, incitement, or any other non-protected speech category. It’s just an activity with broad, diverse motives and contexts.
Donald Trump has heard of the First Amendment. I’d be willing to be he has no idea about Texas v. Johnson, or that the late, conservative Justice Antonin Scalia voted in favor of the decision.
And yet, we’ve barely cracked the surface of why Trump’s sentiment was so unnerving. A year in jail for speech is a horrifying suggestion, and should be mocked, condemned, and rejected no matter whose idea it is.
But loss of citizenship? The disproportionality between those two punishments makes the whole tweet appear to be even more of a joke. Numerous Supreme Court cases back up the difficulty in kicking an American-born citizen out of the US involuntarily. And we’re talking about crimes a lot more serious than burning cloth.
The lack of expatriation as a criminal punishment is thanks to Trop v. Dulles (1958), which said taking citizenship away as punishment violates the Eighth Amendment, and Afroyim v. Rusk (1967), which established that the US government must prove that someone knew exactly what they were doing, and willfully intended to renounce citizenship when they performed whatever action is in question. The legal blog Just Security compares stripping someone of their citizenship to discarding their right to a trial. Fortunately, the Constitution doesn’t permit that (Gitmo notwithstanding).
Some politicians have pushed to change this protection, including Sen. Ted Cruz. In 2014, Cruz pushed for a dangerously broad change to Afroyim’s precedent in the form of a bill that would have punished those convicted of providing material support for terrorism with forcible expatriation.
Yet, Trump managed to beat Cruz. Not only is Trump unlikely to know the relevant court cases that stand in the way of his absurd suggestion, he also appears unaware of the nasty connotations of breezily stripping away citizenship. Most famously, Nazi Germany did this to its Jewish population in 1935, and it’s black and Romani population as well. The Nuremberg laws are not something you want associated even a whit with your first 100 days in office.
The US tends to ignore the UN’s various declarations on human rights, for better or for worse. But yes, they also have guidelines about a right to citizenship, and undoubtedly this is based on Nazi precedent, or even more recent acts of ethnic cleansing, as in the ‘90s war in the former Yugoslavia.
The problem here is not entirely whether Trump “meant it” or not. The president-elect is — at best – Twitter-trolling as if he were a true member of the alt right; the type of person with the username reichrules1488, who makes fun of you if you assume they’re literally a Nazi. Haha, you thought the president was actually going to take away people’s citizenship for constitutionally protected speech?! Gotcha! LOL.
This is a bad place to be. Most likely, Trump was half-serious, but was simply flailing and pandering all over the map. People like the flag, right? They like saying things like “love it or leave it.” Why not just kick those people who hate the flag right out the country?! Then all the patriots will love me!
This mentality isn’t new to politics. But in Trump’s hands, and on his Twitter, it’s lacking a certain veiled finesse.
It’s bad enough that someone who doesn’t appear to know the law at all, even if he is the President-elect, is suggesting stripping citizenship. But a Trump lawyer could even be worse—someone who knows how to twist the law to their own authoritarian ends is probably just as dangerous as someone who has no clue what Supreme Court decisions he’d have to overturn to enact such monstrous legislation.
But that uphill legal battle is a small comfort when faced with the blitheness of Trump’s fascistic social media musings.