Thursday, December 1, 2016

Trump's Flag-Burning Comments: One Way to Set the Constitution Ablaze

President-Elect Trump has turned heads in more ways than one. During the election, he used Twitter as a social media platform to develop a connection with his supporters, and even now, he uses Twitter to convey his thoughts and opinions. His latest communiqué on Twitter (see below) has those both on the Left and Right worried about whether Trump will respect the Constitution.

Let's start off with a primer on the Constitution. For one, Trump can't revoke an American's citizenship simply because they burn an American flag. There's this not-so-new thing called the Fourteenth Amendment, which starts off by saying that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are Citizens of the United States and the State wherein they reside." It's similar to the right of a speedy trial or a jury of one's peers: it can't be revoked because you're offended. The Constitution doesn't contain a right to not being offended, which was the whole point of the Supreme Court's ruling Texas v. Johnson (1989). The Supreme Court found that burning the flag is protected speech under the First Amendment. Even after Congress' attempt to make it illegal, the Supreme Court ruled yet again in United States v. Eichman (1990) that flag-burning is protected under the First Amendment, and that symbolic expression has been a part of the First Amendment. And let me point out that in both of these cases, conservative Justice Anton Scalia voted in favor of the constitutionality of flag burning, even in spite of his personal aversion towards flag burning.

Even if we go back to the tenuous idea of banning something simply because someone is offended, the burning of the flag itself is not offensive because you want to know what the Veterans of Foreign Wars consider the proper way to dispose of a flag? Burning it. So it can't be the action of setting the flag on fire that sets people off. What certain individuals find offensive about the burning of the American flag is the symbolism of burning the American flag in protest. In short, the flag is important because of the meaning ascribed to it. It is about national unity and pride, and thus represents the spirit of the nation.

Is burning the American flag the way I would go about protesting and criticizing America's policies? Personally, no. I have a blog to exercise my free speech and express my discontent with public policy because I find it to be a better form of expression. I also happen to find it to be a more profound form of patriotism than blind, unconditional patriotism. But some people feel they need to express their discontent in different ways, and it would hardly be a free society if we began silencing dissent. Republican Senator Mitch McConnell opines that burning the American flag is free speech, and that the United States has a "long tradition of protecting unpleasant speech." For those who are offended by flag burning because of symbolism, let's remember that what is by far more important than protecting a piece of fabric, even one imbued with cultural reverence, is protecting the values that the flag is supposed to represent: freedom, democracy, and the American way. Not only is it virtually impossible to erode national security by burning the American flag, but it does not violate anyone's rights because burning the flag does not violate others' safety, health, property, or involve intruding upon the private space of another individual.

Let's bring it back to one of the motifs behind American ideals: if you're not hurting anyone, you have the right to do what you want with your property and live your life the way you want, even if others find it offensive. If we value what the flag stands for, then flag burning has to remain legal, in spite of adverse reactions to the flag being burned. After all, it is the freedom for which American soldiers fought over the years. Freedom of the press, freedom of speech, freedom of religion, freedom of protest, pornography, obscenity. These freedoms have offended Americans over time, and yet they are protected precisely because that protection not only prevents tyranny of the majority over the minority, but also represents the values we hold dear. A society would hardly be free if people are not allowed to challenge values, even if that challenge goes against societal norms. The right to burn the flag remains a litmus test of freedom of speech, and making it illegal could very well be the beginning of the Constitution going up in flames.

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