The Constitution vs. Executive Order: Trump's Unflagging Push Against Flag Burning

In a move that stirred considerable legal and constitutional debate, former President Donald Trump explored the possibility of issuing a new executive order aimed at banning flag burning. This wasn't the first time Trump had expressed strong opinions on the symbolic act of flag desecration, having previously called for harsh penalties, including imprisonment or loss of citizenship, for those who engage in it.

The very notion of an executive order banning flag burning immediately raises significant red flags for constitutional scholars and civil liberties advocates alike.

The reason is simple: the Supreme Court of the United States has, on multiple occasions, decisively ruled that flag burning is a form of protected free speech under the First Amendment.

The landmark 1989 case, Texas v. Johnson, saw the Supreme Court overturn the conviction of a protester who burned an American flag.

Justice William Brennan, writing for the majority, famously stated that "The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong." This ruling solidified flag burning as a form of expressive conduct, protected even if deeply offensive to many.

Just a year later, in 1990, the Court reinforced this stance in United States v.

Eichman. After Congress attempted to circumvent Johnson by passing the Flag Protection Act, the Supreme Court struck down that law as well, reaffirming the unconstitutionality of criminalizing flag desecration. These two rulings set clear precedents that have stood for decades, making any executive order attempting to ban such acts virtually unworkable and guaranteed to face immediate legal challenges.

Interestingly, the protection of flag burning as free speech has enjoyed a surprising level of bipartisan support, or at least understanding, within the legal community.

Even conservative icon Justice Antonin Scalia, though personally abhorring flag burning, publicly defended its constitutional protection. His view was that if he were to write a First Amendment that restricted flag burning, he would be a "bad Justice." This illustrates the deep-seated principle that constitutional rights often protect speech we find objectionable.

Critics of Trump's potential executive order argued that it would not only be a futile exercise in constitutional overreach but also a political miscalculation.

Such an order would likely be swiftly challenged and struck down, serving primarily to galvanize opposition and draw attention to the very issue it sought to suppress. It also risks creating a political "trap," forcing opponents to defend an act that many find distasteful, even while upholding constitutional principles.

Ultimately, the discussion around a flag-burning executive order underscores a recurring tension between symbolic patriotism and fundamental constitutional rights.

While the desire to protect national symbols is understandable, the bedrock principles of free speech, as enshrined in the First Amendment and upheld by the Supreme Court, present an unyielding barrier to any governmental attempt to criminalize flag desecration.