Flashback to the 1980s! Flag burning is in the news again, thanks to President-elect Donald Trump’s tweeted threat to punish those who burn Old Glory, with suggested consequences ranging from a year in jail to the loss of their U.S. citizenship.
Let’s get the easy stuff out of the way: What President-elect Trump is suggesting is unconstitutional.
The U.S. Supreme Court has twice held that the First Amendment protects the right to burn the American flag, first in Texas v. Johnson (1989) and then again in United States v. Eichman (1990).
The Court’s rulings on flag burning have their roots in an earlier case, Spence v. Washington (1974), which involved a man who was prosecuted for displaying an American flag upon which he had placed a peace sign made of tape. In that case, the Supreme Court reaffirmed its long-held position that the First Amendment does not merely protect the spoken and written word, but extends to all conduct that is “sufficiently imbued with elements of communication.”
Let’s get the easy stuff out of the way: What President-elect Trump is suggesting is unconstitutional.”]
In short, it’s been settled law for over 40 years that the First Amendment protects expressive conduct involving the American flag generally, and for over 25 years that the First Amendment protects flag burning specifically. And ever since those decisions were handed down, the U.S. Supreme Court’s protection for even deeply offensive forms of speech has only increased. In recent years the Court has invalidated restrictions on violent video games, depictions of grotesque animal cruelty, and the appalling protests of the Westboro Baptist Church.
All this means it’s a safe bet that if this issue were to make its way back to the Supreme Court, the Court would, once again, declare that the First Amendment trumps Trump’s displeasure with flag burning.
So if the constitutional questions are easy, what lessons can be learned from Trump’s threats? Perhaps there are two.
Lesson 1. Incentives Matter
The first lesson is one that should be familiar to Learn Liberty readers: In politics, as in all things, incentives matter.
When it comes to flag burning, what incentives do elected officials face? Do they have strong incentives to enforce the Constitution, or to stay popular with the voting public? The answer should be obvious: although elected officials frequently pay lip service to constitutional limits on government power, their zeal for limited government rapidly diminishes when the beneficiaries of constitutional protection are unpopular with voters. Their incentive is to give the public — or, often, concentrated interest groups — what they want, regardless of whether it conflicts with the Constitution.
As it happens, flag burning is looked down on by large swaths of the American public. So threatening to punish flag burners with a year in jail is an effective way to win or maintain popular support.
These responses to incentives are not a partisan issue; Democrats are no more immune than Republicans. Need proof? Consider that in 2005 then-Senator Hillary Clinton co-sponsored a bill called the Flag Protection Act of 2005, which threatened flag burners with a year in jail and $100,000 in fines.
Lesson 2. An Independent Engaged Judiciary Can Protect Us
This brings us to the second lesson: the vital necessity of an independent and engaged judiciary to enforce constitutional limits on government power.
Part of the genius of our constitutional system is that the Founders understood the incentive faced by Congress and the president to exceed the constitutional limits on their power. That’s why they built a safeguard against it: Article III of the Constitution, which vests the judicial power of the United States — including the power to declare laws unconstitutional — in an independent judiciary whose members are not elected by the public and cannot be removed from office other than through impeachment.
As Alexander Hamilton put it in Federalist 78, this judicial independence “is peculiarly essential in a limited Constitution,” and, without it, “all the reservations of particular rights or privileges would amount to nothing.”
History has amply demonstrated the Founders’ wisdom. In the realm of the First Amendment, we repeatedly see politicians enact laws that limit speech in ways that they either know or reasonably suspect are unconstitutional. In some cases they even go on record, such as when President George W. Bush signed the Bipartisan Campaign Reform Act of 2002 despite his self-professed “serious constitutional concerns” regarding the law’s “broad ban on issue advertising” — a ban that the Supreme Court later held unconstitutional in Citizens United v. FEC (2010).
History has also amply demonstrated what happens when the judiciary fails to serve its vital role as a check on the other branches. Much of the explosive growth of government that America experienced during the twentieth century was facilitated by the Supreme Court’s failure to enforce constitutional limits on Congress’s power to regulate commerce and spending.
And at the same time the Court was permitting this growth in government, it was abetting the diminution of Americans’ rights by failing to stand up to legislative encroachments on property rights and the right to earn an honest living.
But this expansion of government power and contraction of individual liberty is not inevitable. Indeed, in the wake of Donald Trump’s election, there seems to be renewed interest in the idea of limited government.
So although Trump’s threats against flag burners are silly and legally frivolous, they are also something of an early Christmas gift. They have provided us with an important opportunity for a long-overdue national conversation about the Constitution — not just the First Amendment, but the entire document — and the critical role that federal courts play in enforcing it.