Trump’s Tweet Against Flag Burning: Right on Sentiment, Wrong on the Law

This is going to upset some people.  Donald Trump tweeted on Tuesday:
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 Supreme Court has ruled twice that burning the American flag is protected speech under the First Amendment, first in Texas v. Johnson in 1989, and later in U.S. v. Eichman in 1990.  Justice Antonin Scalia voted in favor of both rulings. He said in an interview that, while he did not approve of flag burning, forbidding it would be tyranny.

Flag burning should upset any red-blooded American, especially those with friends or family members who fought for, or perhaps died for the flag.  If I were to encounter a flag burner, I would use the opportunity ask them how they feel about dishonoring the memory of our veterans who fought and died for our freedom and what the flag means.  I remember an episode of ‘Blue Bloods’ where Commissioner Reagan changed the venue of a flag burning protest to a cemetery where the protest leader’s father, who was killed while serving in Iraq, was buried.  The young man could not go through with the flag burning.
I would also ask protesters how they propose to keep our Republic without patriotism.  People don’t talk much anymore about what it takes to maintain a republic, but things like patriotism and citizen engagement are definitely required.  I’ll be returning to this theme many times.  People are taking the continued existence of our Republic way too much for granted and the Constitution Project hopes to bring what it takes to maintain the Republic back into the conversation.
 
On another subject, a constitutional professional reacted to what I said last time about the Emoluments Clause and Donald Trump’s conflicts of interest.  The professional raised a number of issues, starting with the observation that the Clause might not apply to the Presidency at all.  He also pointed out that George Washington accepted gifts from foreign governments without the Congressional consent specified in the Emoluments Clause.  I’m including all of the professional’s comments in the wrap-up.

Finally, send your thoughts and suggestions about the Constitution Minute to [email protected].
 
Links

“What the Supreme Court has said about flag burning”
http://www.cnn.com/2016/11/29/politics/flag-burning-constitutional-donald-trump/ 

Wikipedia page on Supreme Court flag burning cases
https://en.wikipedia.org/wiki/United_States_v._Eichman

“Clinton did co-sponsor legislation a decade ago to jail flag burners”
http://www.politifact.com/georgia/statements/2016/dec/02/blog-posting/clinton-did-co-sponsor-legislation-decade-ago-jail/
 
Emoluments Clause

Comments from a constitutional professional:

The emoluments clause question is a complicated one.  

First is the Presidency an “office of profit or trust” required to trigger the emoluments clause? In 1792, the Senate asked Secretary of the Treasury Alexander Hamilton to compile a list of all persons holding Offices under the United States and their salaries. Hamilton’s 1793 response included nonelected officials in each branch, including the Legislative Branch, but did not include any elected officials (including all congressmen, the President and the Vice-President), it’s possible these are not Offices under the United States. George Washington didn’t think so, he accepted and kept two diplomatic gifts from foreign states without congressional consent, do you think George Washington violated the Constitution? 

Even if it did apply to the President, it’s hard to say if it would apply to the Trump enterprise, it is after all a legally separate entity. Can no business owned by a government officer, even just a small part in a mutual fund they own, accept any gift from a foreign government? Seems unlikely. 

I don’t know, there are a lot of hard questions to answer here.