To President-Elect Donald Trump:
Hi Donald. You really seem to like twitter. I don't really use it much, but from time to time I see something that you've tweeted. Like this, for example:
“Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!”
https://twitter.com/realDonaldTrump/status/803567993036754944
Now, let's start with the things that we can agree upon. I also don't like flag burning. Like you, I love my country. Sure we have issues, and life is considerably better for some of us than others. We have a lot of work to do. But ours is a country of self-reflection, and self-improvement. I love our country, warts and all. It saddens me when people deface the symbol of our great country. It saddens me when they burn the flag that gives hope to so many, and for which so many have sacrificed, and even given their lives. I think it reflects an immaturity, and an unawareness of the privilege to live in the country. Certainly, I can't speak for the pain, and the humiliation, and the suffering many flag burners have faced. I haven't lived their lives, and I sympathize (as best I can) with their plight. But ultimately, I think the act of flag burning only foments anger, and does not constructively add to political conversation. So I'm with you in this Donald, like you, I too don't like flag burning.
But, Donald, what we like and what we don't doesn't really matter. Because it's free speech, and thus protected under our constitution. The constitution protects a lot of speech that I don't like. It protects hate speech, Nazi speech, racist speech, obscenity, insults, and all manner of offensive speech. We believe that the cure for bad speech isn't censorship, but rather more speech, more discourse, and more ideas.
I know what you're going to say, Donald. "How can flag burning possibly be speech?!?" Well, there's lots of things that aren't specifically speech that the constitution has recognized as such. Written words qualify as speech, even though they are not spoken. Campaign donations have been recognized as speech. What you wear has been recognized as speech. Films, books, magazines. All speech. In short, what is protected really is expression.
The law has long recognized the value of such expression. One of my favorite justices, Benjamin Cardozo said as early as 1938 that “Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.” Palko v. Connecticut, 302 U.S. 319, 327 (1937). In other words, all of the freedoms that we enjoy in this great country are predicated on that fundamental freedom of expression.
This could be a really short post, Donald. Because this matter has already been decided. The court decided in Texas v. Johnson that flag burning is protected speech under the first amendment. Texas v. Johnson, 491 U.S. 397 (1989). Thus, any attempt to criminalize flag burning, as you suggest, would be unconstitutional. Game. Set. Match.
Now I know, Donald, that you will claim that you know the constitution, that nobody knows the constitution better than you do, and that what you really mean is that flag burning should not be protected. Go read Johnson, Donald. I think you'll find that this isn't a rogue judiciary, or judges gone wild. I think you will find in the opinion a shared distaste for flag burning, but also a recognition that we must defend that with which we most vehemently disagree:
"The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to bee applied is more speech, not enforced silence.Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."
But, I know that you disagree with the case, Donald. And I know what you do with things with which you disagree -- you pretend that they don't exist. While I find this counterproductive, I'll play by your rules Donald. Let's pretend that Johnson doesn't exist, that flag burning is not protected by the constitution, and that it could be criminalized. You suggest two possible criminal consequences -- loss of citizenship, or imprisonment for one year.
The Supreme Court has conclusively deemed it unconstitutional to involuntary strip someone of his citizenship. Afroyim v. Rusk, 387 U.S. 253 (1967). Nobody who is a natural citizen can be involuntarily deprived of his citizenship. Nobody. Not murderers. Not child molesters. Not traitors. And certainly not flag burners. Moving on.
A year imprisonment is a bit more tricky. This is not a mala in se crime (one that is bad, in and of itself, if your latin isn't up to it), but rather malum prohibitum (bad because it is prohibited). Generally, malum prohibitum crimes don't carry so significant a penalty as one year in prison. Generally it's lesser periods of incarceration, or more commonly fines. You haven't defined the elements of your proposed crime. What is the mens rea requirement? I believe a court just might find one year imprisonment do be disproportionate, and thusly considered cruel and unusual under the eighth amendment to the Constitution (that darned constitution), and thus prohibited.
However, I will admit that courts rarely find prison sentences disproportionate, so I can't be as certain about this result as I am about the flag burning or loss of citizenship. It's a tossup. And the tossup should go to the man who has been elected president, so you win this round. Let's suppose that one year imprisonment would be a constitutional punishment.
One year is sort of a magical number in the law, Donald. One year imprisonment means that we are talking about a felony, our most serious classification of offenses. You get certain constitutional rights when you are charged with a felony. In some states (and at the federal level), you get the right to a separate grand jury proceeding. Under the sixth amendment, you also get the right to have an attorney appointed to you and paid for by the state, should you be able to prove indigence. Your idea is becoming quite the expensive one, Donald.
One year is also important, because in most states, sentences of less than one year are carried out in county jails, whereas sentences of more than one year are usually carried out in state penitentiaries. So your flag burners would be jailed alongside individuals who had committed rapes, and murders, and armed robberies. Jailing political opponents. How very medieval of you Donald. Of course, all of these new prisoners will require new and expensive prisons, but as you once said Donald, Denmark is a prison. Wait, that was somebody else. How I wish you had his self doubt.
So, unconstitutional on two counts, and possibly three. Expensive as anything. Ill thought out, and poorly articulated. If you were my student, and had answered like this on a test or a paper, I would have given you a D-, only because I wouldn't have the heart to give you the grade that you properly deserve.
This discussion has been cloaked in law, and philosophy, and reason, and a dispassionate consideration of the facts. You did not campaign on such virtues. Yours was a different campaign -- a more populist one. So, allow me to provide a populist rejoinder to your idea --
"...what you've just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul."
Stop trying to make everyone think and behave like you do, Donald. We won't. And it's not because your way is wrong. I don't think that anyone on earth is 100% wrong, or 100% right. The great thing is, we don't have to be. We don't have to be uniform, we don't have to be the same. America is the greatest country on earth, not because of our similarities but because of our differences. Our differences are what make us strong. The Supreme Court in Johnson understood that.
I don't doubt your intelligence, Donald. You went to Wharton. You've made (and lost) more money in your life than I could in one hundred lifetimes. You have survived financial disasters, and come back strong. Such resilience cannot be explained merely my luck or advantage. Your own skill and determination has had much to do with your success. More recently, against considerable odds you won an election that virtually everyone had written you off of months before. Everyone thought you would lose -- the pundits, the media, and the roughly 75% of Americans who either didn't vote, or voted against you. You proved them all wrong Donald.
All that to say, I think that you're a pretty smart guy, Donald.
Start acting like one.
