If you’re a libertarian or “conservatarian” and feeling fidgety about Trump’s tweet this morning, remember that any new legislative exceptions to the First Amendment have to get through McConnell as majority leader. And he’s been steady on this issue for decades.
Though he never called out Trump by name, McConnell quickly moved to disassociate himself from Trump’s sentiments. In the past, McConnell opposed efforts to ban flag burning.
“The Supreme Court has held that that activity is a protected First-Amendment right, a form of unpleasant speech, and in this country we have a long tradition of respecting unpleasant speech. I happen to support the Supreme Court’s decision on that matter,” McConnell said.
Let’s flash back to 2006, the last time a serious effort was made to pass a constitutional amendment to ban flag-burning. Article V of the Constitution requires a two-thirds majority of both houses of Congress to support an amendment before it heads to the states for ratification. The 2006 amendment met that threshold in the House and got within one vote of meeting it in the Senate. Three Republicans voted no. One of them was McConnell, who published this op-ed defending his position:
No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that.
Weakening our First Amendment could also set a dangerous precedent for the rest of the Bill of Rights. If we successfully carve out an exception to one basic freedom, perhaps those who seek to curtail our Second Amendment rightsthe right to bear armswill carve out another. Or the right to own private property, as expressed in the Fifth Amendment, could come under assault.
We also must realize that even a constitutional amendment will not instill proper respect for the flag in any scoundrel who would burn it. On the contrary, by invoking our sacred constitutional amendment process, we would give such a person just what he seeks: attention. Why tamper with the First Amendment to solve a problem that thankfully is not widespread?
He’s been firm on this point for years. At least 20 years, in fact: Watch the clip below, from December 1995, of McConnell delivering a floor speech against yet another legislative initiative to ban flag-burning. I don’t think Trump or the GOP are close to taking this up in any serious way when there’s so much substantive policy on their plates right now, starting with replacing ObamaCare and hashing out something on infrastructure. You may see it return in time for the 2018 midterms, though, as it’s great low-budget populist fodder and will put vulnerable red-state Democrats like Joe Manchin, Jon Tester, Heidi Heitkamp, Joe Donnelly, and Claire McCaskill on the spot. I kind of want to see the debate happen just for that reason. On a gut-check vote for a constitutional amendment to ban the practice of burning the flag, how many senators vote yes? It’s unpredictable. For starters, McConnell and Rand Paul are a cinch to vote no, which means the trek towards 67 votes would start with the Senate evenly divided at 50 even if all other Republicans vote yes. How many of those red-state Dems would cross the aisle? (Manchin surely would.) Would any more liberal-leaning Democrats join them? How about conservatarians like Ted Cruz and Mike Lee? If it does look like 67 votes are there, would McConnell take the extraordinary step as majority leader of trying to block the amendment from coming to a vote? I’m curious.
I’m also curious to see that battle play out in right-wing media, specifically in how predictably different niches react to the amendment. Libertarians will uniformly oppose it; nationalists, I assume, will be uniformly in favor, although David Frum asked an interesting question this morning about how long those “hail, victory!” Nazi salutes given at the alt-right conference in Washington recently would remain legal once we’ve carved out one exception to the First Amendment. How will movement conservatives react, though? Under normal circumstances I suspect they’d side with nationalists but there may be a divide now due to suspicions over Trump. When an authoritarian populist is demanding a ban to flag-burning, especially as part of a fantasy about stripping people’s citizenship, you might view that a bit more skeptically than you would if, say, George H.W. Bush had proposed it.
Whatever happens, can we agree at least that flag-burning to make a political point actually is a form of speech? If so, someone tell this guy. Skip to 26:00 of the clip for McConnell’s speech.