“Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!”
So tweeteth President-elect Donald J. Trump on Tuesday.
I’m glad he’s decided to attack the Bill of Rights in order, starting with the First Amendment. It will be interesting to see how he will try to undermine the Third Amendment. (Trump supporters and leftists will have to Google that one.)
Of course, I am being facetious. It is unlikely Trump, who apparently obtains all his news and information from the internet and lacks the ability to understand fake news from real news, has ever actually read the U.S. Constitution. His childlike understanding of government shows he is unwilling, and probably even unable, to actually comprehend it.
This leads to what should be called the Trump Paradox: Can you actually swear an oath to uphold something you have never read and don’t understand?
No president in the history of the Republic has taken office with such a limited knowledge of government and constitutional law.
Oh, there have been presidents who disdained the Constitution. President Barack Obama, for example, who once said the Constitution is flawed and has spent his entire presidency trying to “fundamentally change America.”
But at least Obama has actually read the Constitution.
Trump’s ill-considered tweet, which probably cause more flag burnings than it stopped, is somewhat phenomenal in that it took him only 24 words to call for violating the First, Fourth and Eighth Amendments.
The disregard for the First Amendment is obvious. Desecrating the U.S. flag is protected speech. The Supreme Court and Justice Antonin Scalia, who Trump said is the kind of jurist he will appoint to the court, said so nearly three decades ago.
The point of the First Amendment is not to protect pleasant speech, but to protect the most vile and disgusting speech imaginable. It is designed to allow the Ku Klux Klan to march down Main Street calling for white supremacy while also allowing the Black Panthers to march down the same street calling for the exact opposite.
A ban on flag burning would also violate the Fourth Amendment. You have an inherent right in your property. That means you can destroy your property. If you go to the store, purchase an American flag and then desecrate said flag, you are simply destroying your own property.
The United States was founded on the Lockean principles of life, liberty, and property. You have an inalienable property right in that flag you purchased and you can treat it any way you wish.
Finally, the Eighth Amendment bans cruel and unusual punishment. There is no legal way for a natural-born citizen to be forcibly stripped of his or her citizenship. None. Creating a law that would strip natural-born citizens of their birthright would certainly be cruel and unusual.
Indeed, there are only very limited ways in which even a naturalized citizen can lose citizenship, such as lying in the naturalization process, joining a subversive organization in the first five years of citizenship, refusing to testify in front of Congress in the first 10 years of citizenship, or receiving a dishonorable discharge from the military.
Of course, Trump’s comment is not a real threat given that the law is settled. However, you have to take every presidential statement seriously. This is something Trump needs to learn. He can’t get up early in the morning, see something on the internet, and spout off without considering his comment.
Everything he says or tweets will be analyzed. His comments, by definition, are policy proposals. One errant comment and the stock market will drop 200 points. Making the kind of wild and blatantly false statements as he did on the campaign trail might have been entertaining while he was running for president, but it is downright irresponsible when you occupy the biggest bully pulpit on the planet.
It is phenomenally disturbing that Trump has yet to comprehend this basic fact of presidential life.
As a war veteran it is easy to understand the sentiment against flag burning. However, defending the Constitution is paramount in maintaining liberty. Real patriotism cannot be coerced.
Ironically, if you ban flag desecration, then the flag is no longer a symbol of liberty and becomes a symbol of oppression.
We cannot allow the flag under which millions of men and women have risked their lives in the cause of liberty to serve as an instrument to abridge the very constitutional rights for which they fought.
Thomas J. Lucente Jr. is an attorney with the Hearn Law Office in Wapakoneta (419-738-8171) and night editor of The Lima News. Reach him by telephone at 567-242-0398, by email at [email protected], or on Twitter @ThomasLucente.