Who Wants to Protect the Flag?

Who is more radical than Antonin Scalia?

In a 1989 ruling, the Supreme Court upheld the right of protests to burn the flag in a 5-4 decision, with the late Justice Antonin Scalia siding with the protesters. He later said he based his ruling on a “textual” reading of the Constitution.

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said in 2015 in Philadelphia. “But I am not king.”

I don’t like it when people burn the American flag, but I’m also disciplined enough not to voluntarily give their act power by reacting in a wounded way. I certainly don’t think the penalty should be “loss of citizenship or [a] year in jail!” as Donald Trump asserted in one of his latest tweets.

Those softies on the Supreme Court decided way back in 1958 that stripping people of citizenship as punishment is “cruel and unusual” and therefore violates the 8th Amendment.

Obviously, most people react with visceral distaste when the flag is disrespected, and it’s politically popular to protect it, which is why Hillary Clinton thought it would be a swell idea to cosponsor a bill in 2005 that would fine flag-burners $100,000 and put them behind bars for a year. Some of us saw that pandering as an excellent reason to support someone else in the 2008 primaries.

It certainly makes it harder to criticize Trump for suggesting something similar, doesn’t it?

It’s also a reminder that Scalia’s unique form of extremism had its occasional advantages.

Support Nonprofit Journalism

If you enjoyed this article, consider making a donation to help us produce more like it. The Washington Monthly was founded in 1969 to tell the stories of how government really works—and how to make it work better. Fifty years later, the need for incisive analysis and new, progressive policy ideas is clearer than ever. As a nonprofit, we rely on support from readers like you.

Yes, I’ll make a donation

Martin Longman

Martin Longman is the web editor for the Washington Monthly. See all his writing at ProgressPond.com