Flag Burning  proposed by Donald Trump – Many Ways Around Recent Proposed Constitutional Amendment

A suggestion by president-elect Donald Trump that those who burn the American flag should be stripped of their citizenship or jailed has resulted in widespread speculation about how difficult it would be to amend the Constitution so that flag burning could again be criminalized.

 

Flag Burning photo

Flag Burning

Photo by Dave’s Photographs

But this misses an important point, says public interest law professor John Banzhaf, because, even in the very unlikely event that such an amendment were adopted, there are many ways in which those who wish to burn or otherwise desecrate our national symbol could escape punishment for doing so.

For example, a recent proposed amendment (S.J. Resolution 180) used this language: “The Congress and the States shall have power to prohibit the physical desecration of the Flag of the United States.” The word flag, as defined in 18 U.S.C. 700, means “any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.”

But anyone who wished to dishonor the American flag could simply produce a pseudoflag – a flag which to the casual observer watching the burning would appear to be an American flag, but which might have 52 stars and/or 14 stripes – the burning of which could not under this amendment be criminalized since the object is not in fact the “Flag of the United States.”

Another possibility would be for a protester to burn a large photograph of a flag, or a flag-shaped cloth upon which the stars and striped appear on only one side – neither of which is a “flag,” but the burning of which would arouse the same strong feelings as the burning of a true flag.

Furthermore, notes Banzhaf, even if a protester burned a genuine American flag, he could suggest at trial that what was really burned was just a pseudoflag with 14 stripes. If the object were completely consumed in the flame, a prosecutor probably could not prove to the contrary; i.e., that the object burned to ashes was in fact a true American flag.

Trying to draft an amendment to cover all these possibilities – e.g., “The Congress and the States shall have power to prohibit the physical desecration of the Flag of the United States, and/or any object which might appear to a casual observer to be an American flag, or the desecration of which would likely arouse the same strong feelings in a casual observer – would be very awkward if not legally impossible under Supreme Court’s ruling in Texas v. Johnson.

Stripping an American citizen of his citizenship for desecrating a flag, or for any other offense, would be even more difficult. Section 1 of the 14th Amendment clearly provides that: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Once a person has acquired his citizenship – whether by birth or naturalization – he is constitutionally entitled to it, and it cannot be revoked even for the most seriousness of crimes.

As the U.S. clearly proclaimed in 1967 in Afroyim v. Rusk “there is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit.”

Subsequently, in Vance v. Terrazas, all of the justices agreed.

So, even those who might support the sentiments expressed by Trump may have to agree that it is virtually impossible to achieve this result.