Donald Trump
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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.

Martin Longman

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