Senate Majority Leader Mitch McConnell, flanked by Mike Pence (left) and Donald Trump, schooled the president-elect today on the First Amendment. (Photo by Mark Wilson/Getty Images)
The Kentucky Republican is a conservative as they come but he has a strong appreciation for the First Amendment and Constitutional law that Trump apparently lacks.
The President-elect ignited a firestorm over the issue when he Tweeted his feeling on the issue this morning at 6:55 a.m.
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment. https://t.co/nVkq6WcbHV
— Justin Amash (@justinamash) November 29, 2016
“Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”
The problem is the matter was resolved by the U.S. Supreme Court nearly 25 years ago in the landmark 1989 case Texas v. Johnson, 491 U.S. 397 (1989).
Justice William Brennan, writing the majority opinion in the 5-4 decision, overturned flag desecration laws in 48 states. The act, was protected as free speech under the First Amendment.
The same year, Congress responded by passing the “Flag Protection Act,” making it a federal crime to desecrate the flag. But the Supreme Court struck down law as well in another landmark ruling, United States v. Eichman, 496 U.S. 310 (1990).
McConnell referred to the court’s action in his comments on Trump’s statement.
“The Supreme Court has held that that activity is a protected First Amendment right, a form of unpleasant speech. And in this country we have a long tradition of respecting unpleasant speech. I happen to support the Supreme Court’s decision on that matter.”
Congress has tried since the 1990 court ruling to pass a Constitutional Amendment to make flag burning an exception to the First Amendment. But McConnell opposed that measure as well in a 2006 vote.
“The solution to such offensive expression is more freedom, not less,” he wrote in an op-ed piece at the time.
“More freedom will reveal the abhorrent falsehoods behind flag desecration. And as our courageous soldiers on the battlefield continue to demonstrate every day, freedom is the most potent weapon Americans have,” he added.
Oddly, Supreme Court Justice Antonin Scalia also sided with the majority in the flag burning case, although he personally abhorred the idea.
In a 2012 interview with CNN, the conservative jurist explained his position.
“If I were king, I wouldn’t go about letting people burn the American flag,” Scalia told Piers Morgan in the above interview. “However, we have a First Amendment which says that the right of free speech shall not be abridged, and it is addressed, in particular to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.”
Maybe that’s it: Trump thinks he’s king.
Check out the video below.