Trump tweets about flag burning, setting off a battle

President-elect Donald Trump touched off a heated battle Tuesday over the limits of the First Amendment when he tweeted that flag burners should be stripped of their citizenship or jailed.

“Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!” Trump tweeted.

{mosads}The suggestion was met with widespread condemnation and both Republicans and Democrats said Tuesday that the constitutional amendment needed to make Trump’s proposal possible is a no-go.

“I do not support or believe in the idea of people burning the American flag, but I support the First Amendment,” House Majority Leader Kevin McCarthy (R-Texas) told reporters. “In my district, we honor the flag; we don’t burn the flag. I don’t understand why someone would want to burn the flag.”

Others were more strident.

“Nobody should burn the American flag, but our Constitution secures our right to do so. No president is allowed to burn the First Amendment,” tweeted Rep. Justin Amash (R-Mich.), a member of the conservative House Freedom Caucus who was elected as part of the Tea Party wave — a movement known for its originalist interpretations of the Constitution.

It wasn’t immediately clear what prompted Trump’s missive. The timing of the tweet coincided with a 6:25 a.m. Fox News segment about Hampshire College students burning the American flag two days after the presidential election to protest his victory.

Trump transition spokesman Jason Miller immediately doubled down on the tweet, saying repeatedly on CNN, “Flag burning should be illegal.”

Some argued that the tweet was an intentional effort to distract the media from covering his web of international business dealings, while others said it demonstrated the president-elect’s tendency to obsessively watch and react to cable news.

But not long ago, the idea of amending the Constitution to make desecrating the American flag a crime was a widely popular idea — among both Republicans and Democrats.

Two 5-4 Supreme Court decisions — one in 1989 and one the following year — affirmed that the First Amendment protects the right to burn the flag as an expression of “symbolic speech.” The 1990 decision, United States v. Eichman, struck down a subsequently enacted law outlawing burning the flag, passed by Congress in response to the 1989 decision.

Congress has several times since attempted to pass a resolution amending the Constitution to allow prohibition of the act.

In 2006, the Senate fell just one vote short of the two-thirds majority needed to send a resolution amending the Constitution to the states to ratify. Only three Republicans — including now-Senate Majority Leader Mitch McConnell (R-Ky.) — voted against it. The House had approved the measure 286 to 130 the year before.

In 2000, the Senate fell only four votes short.

In 2015, an identical measure was introduced by Sen. David Vitter (R-La.) in the Senate and Rep. Steve Womack (R-Ariz.) in the House.

A separate failed attempt to criminalize flag burning by statute, in 2006, was supported by then-Sen. Hillary Clinton. It failed 64-36.

There is little recent polling to suggest how widespread public support for outlawing flag burning actually is, but older data suggests that the issue divides Americans.

Opponents of changing the Constitution argue that tampering with free expression is a slippery slope.

“No act of speech is so obnoxious that it merits tampering with our First Amendment. Our Constitution, and our country, is stronger than that,” McConnell wrote in a 2006 op-ed. “Ultimately, people like that pose little harm to our country. But tinkering with our First Amendment might.”

On Tuesday, he pushed back against Trump’s proposal and noted, “In this country, we have a long history of protecting unpleasant speech.”

The argument for outlawing flag-burning hinges on whether the act bears more in common with defacing a national monument — which is illegal — than it does a legitimate expression of political dissent.

“I happen to believe that speech and the physical nature of the flag are two different things,” Sen. Dianne Feinstein (D-Calif.), who voted in favor of the amendment in 2006, said Tuesday.

“I agree with President Elect Trump that our flag is above politics and any attempt to politicize or disrespect our flag should be off limits,” Rep. Pete Sessions (R-Texas), who was a co-sponsor of both the 2006 and the 2015 measures, said in a statement to The Hill.

But many supporters of outlawing flag-burning were reluctant to address the president-elect’s tweet directly on Tuesday.

Several shrugged their shoulders at the notion that Trump’s statement might spark some political movement on the issue.

“I don’t see a constitutional amendment currently,” McCarthy told reporters.

“I don’t see it coming up, because I think the vote would be pretty much the same,” Feinstein said.

One proponent of amending the Constitution for the first time since 1992 is hopeful that Trump’s interest in the sanctity of the flag will give the proposal an edge:

Womack, who introduced the measure in the House in 2015, said he has “every intention” of refiling.

“With a friend in the White House, there’s no better opportunity than now to give protection to our national symbol,” he said in a statement to The Hill.

— Scott Wong and Jordain Carney contributed.