This is so far off the conservative radar right now that it practically qualifies as a palate cleanser. Still, I admire Jamie Weinstein’s spirit of mischief in quizzing Trump on it, knowing the evergreen potential for questions about flag-burning to blow up and become litmus tests overnight. Here’s me doing my part to amplify it, out of curiosity to see how Jeb Bush, Marco Rubio, Ted Cruz, Scott Walker and others will come down if they’re pressed on it. Cruz’s answer would be the most interesting one, since as the Harvard-trained populist, he’s torn between what he knows about First Amendment jurisprudence and what his audience, especially in Iowa, wants to hear. He faced a similar tension in weighing whether birthright citizenship is constitutionally guaranteed to illegals and whether Kim Davis should have the right to refuse to comply with the Obergefell gay-marriage decision in Kentucky. He came out on the Harvard side on the first question and on the populist side on the second. Where would he land on the right to burn Old Glory?
Suddenly I’m imagining poor Scott Walker being asked about this. Odds that he’d stick with his first answer without revising it later: Less than 20 percent, no?
“Personally, I don’t think it should be legal,” Trump told TheDC, speaking of burning the American flag. “Let me ask you a question. It didn’t used to be legal, did it? I see more and more burning of the flag. Did it used to be legal?”
Burning the American flag was illegal for parts of American history, but Supreme Court decisions in 1989 and 1990 declared that desecrating the Stars and Stripes was protected under the First Amendment of the Constitution.
“People burning the flag, I don’t like them in this country,” Trump added.
This is the thing about Trump: In his own weird way, despite being a loose cannon and a political novice, he has good political instincts. Literally anyone else in the field, I’d bet, would swallow hard at a question about flag-burning and then take care to qualify their position with concessions to “the sacred right of dissent,” etc, but Trump knows what Trump fans want to hear and delivers without missing a beat. For the same reason, I’d be shocked if, at some point in this campaign, he doesn’t call for reinstating prayer in public schools. I looked around for a recent poll to gauge where Republicans are on flag-burning — I’d bet no less than 60 percent support a constitutional amendment to ban it — but the most current survey I can find is from 2006, which showed 67 percent of GOPers backing an amendment that would let Congress ban flag-burning by statute but just 51 percent backing an amendment that would ban flag-burning straightaway. Anyone know of a more recent one? I’m curious to know if those numbers have moved at all since then.
In case you don’t already know, the only reason flag-burning is constitutionally protected speech in America 2015 is because of — wait for it — Antonin Scalia. He was the deciding vote in the 1990 case that Weinstein mentions, a decision written by arch-liberal William Brennan. (I agree with that ruling, but then RINOs gonna RINO.) Exit question: Am I right to suspect that the GOP field would break on this subject roughly the same way they’ve broken on SCOTUS’s gay-marriage ruling? The issues are different, of course, but underlying both is a dispute over whether “the Court has spoken” and we need to move on to more winnable issues or whether the people’s cultural preference deserves to be defended against judicial incursion by pursuing a longshot amendment. (Then again, given the polling on SSM, I’m not sure if the people’s cultural preference is different from the Court’s.)