Larry Tribe called him “constitutionally clueless,” which is a fair and alliterative reaction to the president-elect’s latest dictate by twit:
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
Without needlessly delving into the obvious, Texas v. Johnson held that desecretion of the flag is protected speech, and there is no remedy of “loss of citizenship.” The kings of old might have been able to banish undesirables from the land, but the president cannot. Even the venerated Scalia, who was no fan of flag burning, realized that presidents don’t get to wear the crown of feelz.
Substantively, Trump’s twit was basic legal foolishness, though his twit will launch a thousand lawprofs scattering to murder thousands of words on why the obvious is so, well, obvious. And given the speed and consistency of legal foolishness, lawsplainin’ Trump can be a full-time job for those inclined to take on the responsibility of detailing the obvious, as if he didn’t win the election.
And yet, his supporters hear his legal foolishness and don’t merely feel the love, but appreciate that someone is saying what they have long felt. In this case, that flag burning is wrong. There are a lot of people who feel that way. There are a lot of people offended, if not outraged, by flag burning. They don’t want to hear about your law-talkin’ nonsense. It’s wrong. Period.
Lawyers have been listening to this tripe forever. Otherwise nice and reasonably thoughtful people tell us what they want the law to be. They have no interest in doctrine or prolix explanations of how the law developed to reach a particular outcome. They don’t want to hear Latin maxims. They couldn’t care less who Blackstone is.
People only care about outcomes. They know what’s right and what’s not, and they don’t give a damn how we get there.
Of course, people completely disagree, whether on an individual level, an identity politics level or a larger political level, but everybody is pretty sure they can tell right from wrong. And almost invariably, somebody is going to decide that the legal outcome is wrong. The Supreme Court doesn’t help much, with split decisions suggesting that if the biggest legal brains in the nation can’t reach a unanimous conclusion, then there has to be merit to the argument that the ruling is wrong.
After all, if you think flag burning is such a horrible thing to do, you can take comfort in the knowledge that then-Chief Justice Rehnquist and Associate Justices John Paul Stevens, Byron White and Sandra Day O’Connor dissented in Texas v. Johnson. For people who are so stupid as to believe that burning the flag should be a crime, that’s some pretty fancy company. Remind them that they’re idiots all you want. They’re idiots with four Supreme Court justices on their side. You have one more than them? Woo hoo. You win the ruling, but don’t tell them they’re morons for being one justice shy of a win.
To lawyers, the flag-burning issue is settled law. We appreciate the majority’s holding that, unsavory as it may be, the First Amendment protects speech, no matter how awful it may be to many. But let’s not forget that the same doctrinal protection is under assault from both sides.
Hate speech, anybody? Had the election gone the other way, the question wouldn’t be whether criminalizing flag burning was stupid, or stripping people of their citizenship was even possible, but about imprisoning people for uttering words that made the marginalized and their empathetic allies cry.
While the groups attacking the First Amendment would have been completely different, the attack on the First Amendment would have been just as wrong. And yet, instead of academics decrying the stupidity of the president-elect for twitting something so ridiculous, they would be gushing their love for prohibiting what they deem “low value speech,” as if it was the most brilliantly progressive thing ever.
The difference here is that Trump’s “constitutional cluelessness” reflects that of the “everyman,” regular folks who believe the American flag is a symbol of sufficient importance to be above the First Amendment. They’re wrong, of course, with four justices dissenting, but they’re entitled to be wrong. And Trump is carrying their torch to Washington, even though he’s wrong too.
But before everybody jumps on the Trump is “constitutionally clueless” bandwagon, bear in mind that the constitutionally brilliant are just as happy to undermine doctrine, Latin maxims, constitutional principles, to achieve their desired outcomes. If anything, the difference is that Trump has an excuse for being clueless, having neither education nor experience to guide him to a more sophisticated grasp of what the law and Constitution allows.
Try finding a justification for Erwin Chemerinsky, Dean of the University of California-Irvine School of Law and Raymond Pryke Professor of First Amendment Law, for opining that Rep. Jackie Speier’s bill to criminalize revenge porn and undermine Section 230 safe harbor is totally constitutional:
There is no First Amendment problem with this bill. The First Amendment does not protect a right to invade a person’s privacy by publicizing, without consent, nude photographs or videos of sexual activity.
This is just as ridiculously wrong as Trump’s twit, except that it comes from a “First Amendment scholar” rather than Cheeto the Clown because it serves the progressive agenda rather than the concerns of guys wearing work boots and combat boots, and women in waitress aprons and nurses’ hats. These are the people too unenlightened to get a Ph.D. in intersectional gender studies, but they are good enough for the intelligentsia when they need someone to build their car or refine the oil to make it run.
So Trump twits stupid crap? You bet. But don’t think the more refined twits of those ripping him to shreds for his constitutional cluelessness are any less stupid. They’re just the other side’s stupid crap, wrapped up in a more sophisticated pink bow, but every bit as wrong.