Since this country decided it’d be a good idea to elect an inexperienced billionaire with a penchant for late-night ill-advised Twitter rants as its president, a few things have sounded my personal alarm.
Early Tuesday morning, Donald Trump tweeted that flag burners should be jailed or have their citizenship revoked.
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
This is obviously absurd, and I’m tempted to go all “Boom! Lawyered” on you and explain the how and why of that absurdity.
I could write a deep dive into the Flag Protection Act, and how Congress passed one to outlaw flag desecration in 1968 in response to Vietnam War protesters. Then I could explain that the U.S. Supreme Court ruled in 1989 in Texas v. Johnson that flag burning as expressive conduct—like doing so as part of a public demonstration—is protected by the First Amendment. This rendered a Texas statute criminalizing desecration of the flag, and all statutes like it, unconstitutional. Then I could explain how, apparently obsessed with protecting the purported integrity of the flag as a national symbol, Congress passed the Flag Protection Act in 1989, which amended the 1968 act in a way that Congress thought would address the concerns the Supreme Court expressed in Texas v. Johnson, and how the Supreme Court struck that down in 1990 in United States v. Eichman.
It was my initial plan to write about all of these things and give you the sort of legal lesson you have probably come to expect from me.
But, as it turns out, I don’t really give a shit about the legal history of flag burning, and I doubt you do either. (And if you really do, try reading this report written by a legislative attorney at the Congressional Research Service.)
The alarming bit of Trump’s tweet is not that he thinks flag burning should be criminalized—a lot of congresspeople have thought that. Even Hillary Clinton co-sponsored a bill in 2005 that would have made burning a flag punishable by one year in prison, and there have been ongoing efforts to add an amendment to the Constitution that would prohibit desecrating the flag. (Notably, Clinton voted against such a constitutional amendment in 2006.)
The alarming bit of Trump’s tweet is that he thinks flag burners should be stripped of their citizenship, an obvious violation of the Eighth Amendment—which prohibits cruel and unusual punishment—and the due process clause of the Fifth Amendment—which guarantees the right to an attorney and a speedy trial, among others.
It’s unclear what brought on this sentiment, as Trump hasn’t elaborated. As ABC reporter Katherine Faulders pointed out, the timing of the tweet appeared to coincide with a Fox News segment reporting that protesters at a Massachusetts college burned a flag in protest of Trump’s presidential victory.
If that’s the case, it suggests that Trump thinks it’s OK to jail political dissidents of whose methods he doesn’t approve and strip them of their citizenship.
As Mark Joseph Stern writes for Slate, there’s a word for that, and it’s “authoritarianism.”
Trump appears to believe that the government can revoke a dissenter’s citizenship—and, along with it, a panoply of constitutional rights, including the right to vote—because her speech is exceptionally noxious. This specious conception of citizenship as a privilege to be stripped of dissidents reflects Trump’s authoritarian impulse to control the thoughts of the citizenry by chilling and punishing dissent. Indeed, Trump even believes that citizens who fail to comply with the patriotic orthodoxy should be thrown in prison, a classic method of authoritarian indoctrination
I can’t think of anything that is more authoritarian and dictatorial than jailing and stripping citizens of their citizenship because you don’t like what they say, or, as was the case when Germany passed legislation stripping German Jews of their citizenship, you don’t like who they are.
It’s a harbinger of my personal dystopian nightmare.
Let me explain:
First, a couple of weeks ago, avid Trump supporter and Washington state Sen. Doug Ericksen (R) proposed a bill that would permit law enforcement to charge protesters with committing “economic terrorism,” as reported by the Hill. The bill would make protesting that causes “economic disruption” or that “jeopardize[s] human life and property” a class C felony, and violators could face 5 years in prison and a hefty fine.
Showing the clichéd concern more for property damage than for the lives of marginalized people who are taking to the street to express their displeasure with the government, as the First Amendment permits them to do, Ericksen said in a statement, “I respect the right to protest, but when it endangers people’s lives and property, it goes too far.”
“Fear, intimidation and vandalism are not a legitimate form of political expression. Those who employ it must be called to account,” he added.
Second, Donald Trump had a meeting with Milwaukee Sheriff David Clarke on Monday, who is expected to be Trump’s selection for director of Homeland Security.
This is a man who has advocated for the suspension of habeas corpus, which is a legal recourse requiring that detained persons be permitted to challenge in court the legality of their detention, for shipping up to one million terrorist sympathizers off to Guantanamo Bay. He has referred to Black Lives Matter as “Black Lies Matter” and tweeted that the movement will “join forces with ISIS to being [sic] down our legal constituted republic.” And after Trump won the presidency, Clarke tweeted his solutions for putting a stop to the anti-Trump protests, which included declaring a state of emergency, mobilizing the National Guard, and authorizing all nonlethal force.
As head of Homeland Security, Clarke would be responsible for ensuring the security of the United States from terrorist attacks.
This should terrify you, especially if you are an activist, organizer, or protester. And it should doubly terrify you if you are a person of color.
Am I being alarmist? I don’t think so.
Am I alarmist for thinking that Clarke would happily declare Black Lives Matter a terrorist group? I don’t think so. For months, conservatives, including Clarke himself, have been pushing a narrative that Black Lives Matter supports and incites violence against police. Indeed, they have even claimed an ongoing war on police, although data suggests that the slight increase in violence against the police is due to white shooters, not Black people or Black Lives Matter activists.
Am I alarmist for thinking that a Republican-controlled Congress, after months of anti-Trump protests, might take a cue from Washington’s Ericksen and try to pass legislation that would essentially categorize any anti-Trump protesters as economic terrorists, thus opening them up to enemy combatant status and potential detention? I don’t think so.
One thing is for certain—the protests are not going to stop. And Donald Trump’s bruised ego won’t be able to handle it. This is a man who so requires the adoration of his fans that, instead of attending intelligence briefings and preparing to run the country, he is going on a victory tour. First stop, Cincinnati. It’s very Nurembergian of him. (Can you imagine if President Obama had done a victory lap after he won in 2008? The Republican caterwauling would still be audible today.)
If you’re thinking to yourself, “Imani, you should really calm down,” may I remind you that there are relics of the “War on Terror” that remain law, which Trump could use to crack down on dissenters and the media if he so desired?
The Authorization to Use Military Force (AUMF), which George W. Bush signed into law in one week after the 9/11 attacks, has been used to curtail civil liberties for more than 15 years. And when President Obama signed into law the National Defense Authorization Act of 2012, he codified by statute the indefinite detention powers that both the Bush and Obama administrations believed implicitly permitted indefinite detention. Sure, Obama issued a signing statement pledging that his administration “would not authorize the indefinite military detention without trial of American citizens,” but Trump is not bound by such a statement, as the ACLU pointed out in a press release in 2011.
Which brings us back to Trump’s tweet about jailing and stripping flag burners of their citizenship, and why he would tweet such a thing.
If I were to hazard a guess, he’s manipulating the resistance and the #NotMyPresident enthusiasts. Protesters are bound to show up in throngs to burn flags at Trump’s victory tour, which he could then use as part of some propagandistic scheme to further curtail civil liberties and punish dissidents.
If you still think I’m being alarmist, maybe you haven’t been paying attention.