What Today’s Conservatives Get Wrong About Flag Burning


“Nobody should be allowed to burn the American flag,” President-elect Donald Trump asserted this week in a tweet. He speculated further that “perhaps loss of citizenship or year in jail” might be the appropriate penalty. His opinion sparked predictable outrage, in part because of the alleged harshness of his proposed penalties, but primarily due to Trump’s blanket denial of a right to burn our nation’s flag.

The reaction of many people who describe themselves as political “conservatives” was most surprising and it shows the degree to which these categories have become less meaningful in our politics. Many “conservatives” denounced what they deemed a disregard for freedom of speech. Senate Majority Leader Mitch McConnell cited the U.S. Supreme Court’s landmark holding “that that activity is a protected First Amendment right,” and celebrated our “long history of protecting unpleasant speech.” For his part, Rush Limbaugh sought to reassure his listeners that deep down, Trump acknowledged the constitutional the right to burn our flag, but that Trump meant merely to convey his anger at this misuse of freedom.

It is truly one of the most astounding developments that today’s conservatives have come to believe that our Constitution, rightly construed, protects the right to burn our flag. Nearly three decades ago, when a sharply divided 5-4 court first made that holding in Texas v. Johnson (1989), conservatives generally decried the decision. Justice William Brennan, writing for himself and four of his colleagues, struck down the laws of 48 states and the federal government. To challenge the decision, Congress adopted by an overwhelming vote the Flag Protection Act of 1989, which was then invalidated by the same 5-4 margin less than a year later.

One of the legislators who voted for that 1989 bill was none other than the freshman senator from Kentucky, Mitch McConnell. In his next two terms, McConnell would sponsor at least three more bills to protect the flag from desecration.

But McConnell, like many other conservatives, seems to have changed his mind. Flag-burning is just another form of “unpleasant speech” By this account there is no sound or principled basis for making and enforcing laws restricting the mutilation of the flag, any more than than there is for making and enforcing laws restricting the right to criticize Senator McConnell. Conservatives have “evolved.”

But maybe it is not evolution so much as it is forgetting that has alienated so many conservatives from the broader American political tradition. What conservatives today may have forgotten is the civic purpose of our constitutional freedom of speech—a purpose that might justify the traditional rules against flag burning.

According to the American Founders, the people of the United States constituted the sovereign political authority. These sovereign people have a right and a duty to govern themselves by “reflection and choice” and not by mere “accident and force,” as Hamilton suggested in Federalist 1.

Sovereign communities require that their members have the freedom to engage in political discussion. The very term “freedom of speech,” in our constitutional history, arose first in the English Bill of Rights to identify the right of members of Parliament to free deliberation. But when our Founders asserted emphatically that sovereignty resided not simply in the legislature but in the people at large, they likewise asserted in the new constitutions that the whole citizenry must have a right to free deliberation.

The political deliberative purpose of our freedom of speech might explain why this freedom must include the freedom to criticize current officials but not necessarily the right to attack a symbol of national unity. The nature of a republic’s deliberations presupposes the existence of a “common good”—a metaphorical table around which to discuss. We are supposed to be deliberating how to achieve that good, but that we are constituted to achieve that good is a settled question and is not up for debate apart from revolution or constitutional amendment. Our nation’s flag is a symbol of that common good. To burn that flag is like overturning the common table.

A community has a right to sanction such misconduct—not in order to suppress the discussion of unpleasant or novel opinions, but in order to safeguard the common good that is the purpose of the discussion. Put another way: the purpose of free discussion may very well impose limits on the modes of expression.

In the last century, progressives boldly challenged the Founders’ conception of free speech. They preferred to speak less of the freedom of discourse and more of the “freedom of expression”—a neologism probably introduced by Justice Louis Brandeis less than a century ago. Under the progressive conception, the freedom of speech served to facilitate not so much the community’s deliberations, but the disruption of the community itself. As the court cheerfully noted in Texas v. Johnson (quoting a 1949 case), free speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Or as Justice Holmes said more radically in his dissent in Gitlow v. New York (1925), “[i]f in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

But if conservatives seek to conserve our constitutional order, they should wary of any notion of free speech that is hostile to our national symbols. The preservation of our freedom depends entirely on the preservation of our republic—and that task, in turn, may require that we preserve, protect, and defend the leading symbol of that republic—the flag.

About David Upham

David R. Upham is an attorney and Associate Professor of Politics at the University of Dallas. His primary area of research is in American constitutional history and in particular, the history of the Fourteenth Amendment.

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34 responses to “What Today’s Conservatives Get Wrong About Flag Burning”

  1. I hadn’t seen the quote by McConnell. Truly disgusting.

  2. Apart from this interesting argument from constitutional principles, there is the text-based argument, alluded to in the comment and likewise rejected by more recent progressive Supreme Court precedent, that by its terms the first amendment protects “speech,” not “expression,” so that ostensibly “expressive” actions such as burning something, or, e.g., left-wing activists’ sleeping in a park (protected by another Supreme Court decision), as such do not fall within the ambit of the free speech clause. There is substantial basis in both text and purpose to permit the outlawing of flag-burning.

    • speech is an expression. I hate it when people try to pick apart the bill of rights on wording without reading the individuals writings who wrote our founding documents. It is clear by their writings and philosophy that there is a freedom of thought and speech and other acts are expression of those thoughts.

      Our Law is written off a few principals
      1. Individual liberty is the highest power. Today We only see this upheld with jury nullification.

      2. If it does not pick your pocket or break your leg it is an unconstitutional law.

      If the individual owns the flag and the fire does not damage anyone’s property or put others in danger no it can not be made illegal. That flag might mean a lot of patriotic things to a lot of people, but it is a symbol of terror to the nations we have invaded and a symbol of oppression to some who have been a victim of its police state and tyrannical laws.

      A flag is not a symbol of freedom, our constitution is our bill of rights are. Our actions are perhaps the biggest expression of those freedoms, and look how we use them to oppress others in this nation and others. If anything a flag is a symbol of nationalism and fanaticism and its meaning can be changed and projected onto the masses quite easy. A charger is however defined by its own rights.

  3. The hostility is there – try burning a rainbow flag or Koran and see how open minded they are.

    An incitement is not a protected political expression or speech. Burning the flag only shows you HATE – and liberals seem to wish to create “hate crimes”.

  4. Extraordinary. Now that this president-elect has proposed stripping the citizenship of any American should burn the American flag in protest of government policy, the authors of “American Greatness” suddenly embraces it.

    We can safely assume that Trump wasn’t serious, but this professor is. The notion that the government may rightly, and constitutionally, suppress political dissent by force is a betrayal of our founding principles.

    If this professor is serious, that he agrees with Trump (who surely made this remark in a pique of anger and not upon reflection) Americans who burt the American flag should be stripped of their citizenship, surely he must understand that the only effective means to realize this goal is through the adoption of a constitutional amendment. No such constitutional amendment will actually be proposed, let alone approved by a single congressional committee, nor possibly ever approved by 2/3 of Congress or the states.

    We may laugh this insanity off as fleeting blip on the radar while the hard work of building a wall and deporting millions of illegal aliens proceeds as promised, but this momentary blip is a brief reminder that our rights are at least potentially at risk. Nothing so dramatic as what this professor proposes will ever be enacted into law, but what about surveillance? What about our property rights (anyone remember Kelo?)? What about due process? Equal protection of the laws? Anyone who cares to pay attention should consider the significance of the rise of Bannon and Spencer, the latter being the editor of Radix Journal, which posted a leading contender for the most horrifying political post of recent times:


    No one should blame Trump for the explosion of white nationalist thinking that he welcomed into his campaign and now the White House, but the authors of “American Greatness”, who should understand the insidiousness of white nationalism, should at least bother to address it once. What makes America “great” is our eternal reverence for the ideals of the founding. Strauss described the crisis of the West as the West having becoming uncertain of its purpose, which in a manner of speaking was the maintenance of a just society. There is considerable disagreement as to what “justice” is, but whatever it may mean in full spectrum it certainly must mean in part that the right to free speech shall not, and can never be, infringed.

    • Party, you jumped on this opinion piece, clearly in regards to whether there is Constitutional protection to burn the flag, and managed to arrive at the “insidiousness of white nationalism.” I guess for you the founders would have seen a man burning the flag in the streets and sighed deeply and said, ‘I may not like it, but I’m willing to die for it…’

      Funny how someone who drops all kinds of ‘freedom sounding’ words manages to begin to frame the words of this author as dangerous to freedom, and well, that kind of danger is one we can’t tolerate! Following the author’s logic, which simply concluded that flag burning isn’t a protected right, you envision disorder, constitutional amendments, and a surveillance state. Many would recognize that kind of tactice, I mean argument, as one used to frighten millenials or Yahoo News readers, but you present it here straight-faced. Extraordinary.

      • The Founders accepted certain realities that we would never accept today. They accepted slavery, prohibitions on women voting and certain forms of punishment that we would all agree are cruel and unusual. Yet the Founders discerned the principled foundations, created by God, by which we could eventually agree that slavery et al were wrong.

        Flag burning, whether we like it or not, is a protected form of free speech per the Texas v Johnson decision, which Scalia concurred in. Now, one can obviously argue that the Court got it wrong, just as it might have gotten Roe v. Wade and Scott v Sanford wrong. Yes, one can argue that but until Texas is overturned it remains prevailing law.

        So, was the Texas decision rightly decided? Justice Stevens, a good liberal, wrote in dissent that the American flag is a symbol of freedom and that burning the American flag is nothing more than “disagreeable conduct”. Disagreeable conduct it no doubt is, but imagine a world in which the government retained for itself the authority to punish disagreeable conduct. One could easily envision an Obama or Clinton Administration using this power to punish political opponents on the ground that their conduct was “disagreeable”.

        The Constitution protects the right to free speech. The Constitution does not protect “symbols of freedom”. Imagine an Obama or Clinton Administration deciding for itself what symbols of freedom are. Imagine such an administration deciding for itself what symbols of oppression are.

        The same constitutional right that allows one to burn the American flag allows one to wave the Confederate flag, which has come back into vogue over the last year and a half. Presumably everyone here supports the right every American to wave the Confederate flag, despite it being in the eyes of many Americans (including myself) of being a symbol of oppression. Yet for the very same reason the Constitution protects the burning of an American flag (within the confines of public safety, etc.) the Constitution also protects the proud display of the Confederate flag.

        Our rights are unalienable. God gives us our rights, governments do not.

      • Your reaction to the article was more than a little on the hysterical side. Bans on flag burning leads before were common before 1989. Did the country lack free speech for the vast majority of its history? The Constitution protects speech. Exactly. It does not protect any action which claims to be expressive. Scalia was wrong in this rare instance and Texas v Johnson was incorrectly decided.

  5. Our flag, as noted, is the symbol of our nation and, hence, the symbol of the Constitution and Bill of Rights. Burning or otherwise destroying that symbol ought to result in the forfeiture of the rights contained in those documents. If you hate the symbol, you hate what it stands for – which is why you are destroying it. Because… logic. So – let them burn it. And then throw them in prison. No Speedy trial, habeas corpus, trial by jury or ban on punishment. Throw them in & throw out the key. Since they have shown they dislike the protections offered under that flag – they don’t get them. Simple. Logical. Nothing they can argue.

  6. I tend to agree with Mr. Upham here, additionally… It seems, in general, Conservatives are often quick to embrace the “settled law” argument on controversial issues. This is at least part of the reason that there doesn’t seem to be an ideological “pendulum” but rather a “ratchet.” That is, the left is rarely made to defend it’s ideological turf – so they stake out the next frontier.

    “Marriage” was defined exclusively as a heterosexual couple for 6,000 years across every human culture, and within 24 hours of a narrow court decision half of the right was already yapping about “settled law.”

    Here again, the intuitively absurd notion that burning an American flag is an American right, is routinely accepted as “settled law.”

    What’s wrong with forcing the left to defend some “settled law?”

    Hell, the 2nd amendment has been settled since the founding – and we have to defend it every session of Congress.

    BTW, If I roll a cigarette with an American Flag paper, shouldn’t smoking it be protected speech?

  7. I’m with Justice Scalia -as one of the majority (Texas v Johnson 1989)- on this (Justice Brennan delivered the opinion, seen in full at this link):

    Conservatives can and do have differing opinions; nothing new. We don’t agree about everything.

    I’ve thought about this issue for years – I still struggle with it, and struggle even with that fact that I agree with the Court’s decision in Johnson. I find Flag burning disrespectful, and personally offensive. I often find myself disgusted with those who burn it, and I find myself wishing they could be stopped or punished in some way. But (yet,,, still,,,) I share the opinion of the Court (1989) that it is -and should remain- protected. I was persuaded by Brennan’s written opinion for the Majority.
    I was not persuaded by the Dissenters’ argument against.

    Scalia himself felt that battle of wishing something personally but knowing that there’s something at stake that’s much larger than that.
    “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably
    doing something wrong.” – Scalia
    How much harder for him seeing that his decisions affected real lives. I’m just ‘thinking’, at no cost to others.

    In WV School Board v. Barnette (1943), Justice Jackson wrote:
    “The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own… We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order”

    ‘A mere shadow of freedom’ if we’re free to differ only about things that don’t ‘matter much’? Yes.
    ‘The test of freedom’s substance is the right to differ as to things that touch the HEART of the existing order’? Yes.
    The Flag matters much (!), it’s at the Heart, and also within the heart of the EXISTING ORDER.

    This being said, I also defend DJT’s right to publicly voice his disagreement with SCOTUS’ 1989 decision, et al. -as private citizen, as POTUS-elect, and even as POTUS, The Left would love to deny him this right. Thankfully, they cannot.

  8. President-elect Donald Trump expressed disapproval of flag burning so liberals began burning American flags. President Trump should next express disapproval of suicide.

  9. As a libertarian, our mantra is: You should be free to do whatever you want as long as you are not violating someone else’s rights to life, liberty or property.

    If they are the property owner of the flag, then they can do whatever they want with that property – as long as it doesn’t somehow violate my rights.

    When you have very clear principles, these issues become pretty easy to deal with.

    • Chris, you clearly haven’t thought too deeply about this “clear principle.” If you buy a dog, do you have the right to torture him? If you buy a house in a neighborhood, do you have a right to burn it? If you have a kid, do you have the right to teach him that all women are cheap lays unworthy of any respect? Don’t you think that there is a moral duty to such a thing as a people and a society to uphold certain postulates, that, although not legislated upon, are far more important than written law?

      With all due respect, your libertarian position is fine if you’re 16 years old.

      • Life, liberty, property. If society decides to confer upon a dog some of those rights (which we have) then you can’t torture your dog because that is a violation of those rights.

        If you burn your house down, are you polluting the air that your neighbors are breathing with all of that smoke? Then you are violating their rights. Are you creating an eyesore that will hurt the value of your neighbors’ property? Then you are violating their rights.

        If you teach your child that all women are cheap lays, then you are not violating anybody’s rights, you are just being an asshole.

      • OK, sorry to have disrupted your little ideological Playmobil village. Sounds like you have the world figured out. Heh.

      • Pretty much! And it’s really more of a GI Joe “What’s the Proper Role of Government” Adventure Playset!

  10. So, if I want to express my self by spraying you with gas prior to your lighting a flag, then it would be your idiocy to light the match or lighter

  11. Some people need to calm down a bit–because, apparently, they don’t understand Trump’s rhetoric. Short story version: Trump’s comment about flag-burning is called trolling. He was trolling the progressive-left and their ridiculous protestors (and the lapdog media, but I repeat myself). And they took the bait and burned a few flags, and in the process, the prog-left endorsed free speech. Meanwhile, it was pointed out that Hillary, while in the Senate, had sponsored bill to ban/prohibit flag burning–a position Trump was emulating. It helps to understand that Trump knows he is inciting the prog-left and the media into paroxysms of hysteria for the purpose of pointing out their contradictions, double standards, and hypocrisy. What he most certainly wasn’t doing was making a constitutional argument.

    • This a new formulation of Dan Rather’s famously “fake but true” justification for CBS investing a tale of lies about George W Bush being a draft dodger, the justification being the goal of tearing down Bush.

      How are we mortals to discern whether Trump makes a claim that is an obvious lie is one that should be taken seriously? And what does “seriously” mean in the context of an obvious lie anyway?

      Let’s take two examples. The first example was Trump’s claim that “Obama founded ISIS”. One could excuse it at first on campaign hyperbole, but Trump reaffirmed his belief to Hugh Hewitt after Hewitt tried to explain that Trump couldn’t possibly have meant it “literally”, that what Trump must have mean was that Obama created the conditions that allowed ISIS to arise. No, Trump explained, “Obama founded ISIS.” How do we respond to such a knowing and insidious lie? I would like that exert Trumpologists here to explain that.

      The next example is less insidious than accusing the President of treason, but it poisonous nonetheless. Trump tweeted on 11/27 that he would have won the popular vote but for the “millions of people who voted illegally”. There isn’t a smidge of evidence to support this assertion.

      The flap over Trump’s flag-burning tweet is possibly another useful distraction, or it may be that he genuinely believes that any American who burns an American flag should be stripped of their citizenship. Let’s pray that it was the former. The latter, that our rights should be stripped if we burn an American flag, is a direct assault on our constitutional rights. Don’t take my word for it; ask Justice Scalia.

      And if Scalia is too left-wing for “American Greatness” then Decius was right all along, but for the wrong reasons.

      • I’m afraid you lost me at the Dan Rather ‘fake but true’ analogy. The analogy doesn’t work for me, nor do any of your other suppositions. Applying post-modern literary deconstruction to Twitter is probably a wasted effort.

        I’ve simply suggested that Trump’s tweet was for the purpose of tweaking his partisan opponents. If you’d paid attention during the campaign, you might have noticed this dynamic at work. In this instance, it’s as if Trump said “jump,” and flag-burning protesters responded, “How high?” It’s as simple as that–no discerning of “obvious lies” required.

        Sometimes a cigar is just a cigar.

      • You and I can only guess as to what Trump’s motives may be in suggesting, as he does from time to time, that our individual liberties be infringed. I’m not worried that he will actually infringe our liberties, but it’s still troubling that he regards our rights as something to be used as “tweaks” or “jokes”.

        I have no doubt that you would join me in condemning Hillary had she joked that she would infringe our Second Amendment rights. Our individual rights are not a laughing matter. Whether it’s the right to free speech or the right to bear arms, our rights should not casually tweeted about as something that could be negotiated away.

        But if the argument is that our president-elect should not be taken seriously when he tweets or otherwise makes a public statement, when are we supposed to take him seriously? There may be no good answer to that question and we’ll just have to learn to live with a president who can’t be counted on to say what he means and mean what he says. Fine. But what of this professor here, who argues in some detail, with all apparent seriousness, that Trump would be right to strip the citizenship of any American who burns the American flag, whether in protest of his government or some frivolous reason? A discussion which had been dead for decades, whether there should be punishment for flag burners, has suddenly come back to life after Trump’s tweet. Yes, Trump was no doubt using the tweet to distract the public from other news, but his tweet breathed new life into a wholly discredited idea, punishing citizens who exercise their right to free speech. Let’s hope this view is limited only to “American Greatness”, “Breitbart News” and “Radix Journal”, but what this view hatches into the public sphere? What are to we make of the “greatness” of a country which is so unsure of its own founding principles that it must punish those who dissent from government orthodoxy? And before anyone replies that such punishment would be limited only to the burning of symbols, on what basis could we contain the scope of offensive speech to just the burning of symbols?

        No, no one serious believes Trump would seek a constitutional amendment to prosecute flag burners, but we have one professor here on “American Greatness” who breathes life into this discredited idea.

      • This “discussion which has been dead for decades… has suddenly come back to life” because people started to burn flags again – to protest the election of DJT – and the media made it front page news. Then the tweet.
        Throughout those ‘quiet’ decades, there have been plenty of people who hold the same sentiments as DJT; they’ve just been silent about it (out of sight, out of mind perhaps?). And those people holding the same opinion as Trump can’t be locked into a box: they’re DEMS, REPS, Conservatives, Liberals, Moderates, Progs, et al. Private citizens, members of Congress, Governors, and even a SCOTUS Justice, or two or three or four.
        Personal sentiments don’t = pressing the sentiment into Law/Action. Scalia is the best example of that. After all, he’s on the record (2012) saying, “if I were king, I would not allow people to go around burning the
        American flag. However, we have a First Amendment, which says that the
        right of free speech shall not be abridged — and it is addressed in
        particular to speech critical of the government, That was
        the main kind of speech that tyrants would seek to suppress.”
        So here we have a man with much power who felt the same way about the behavior as many Americans do, but did NOT act to deny the right.
        Much alarm about nothing.

      • Americans have a constitutional right to protest whatever they wish to protest. It would be as ridiculous to suggest that they don’t as it would be to suggest that Trump actually lost the election. The fact, which is easily verifiable, is that Trump won the election and that you have a right to burn the American flag in protest of whatever it is you feel like protesting.

        There are limits to your right to burning an American flag. You can’t burn it on someone else’s private property and you can’t burn it in such as way that is in violation with public safety laws. You also have a right to wave the Confederate flag or to burn it, whatever you wish, so long as doing so is in accordance with public safety laws. If this were just my opinion I would concede that our opinions conflict. But the Supreme Court has ruled directly on this point and held that flag burning is speech protected by the First Amendment.

        “Plenty of people” disagree with a great deal of settled law (I believe my taxes are too high but I pay them anyway), but the law on flag burning is settled until something arises which unsettles it, such as a new court decision or the adoption of a constitutional amendment to ban flag burning.

        Scalia is a great example, as you rightly point out, of how interpreting the constitution works. He had his own opinion about the propriety of flag burning and would, if he were king, ban it. But the point he was making is that he was NOT king and that because something called the First Amendment exists, he must adhere to it. I quote in pertinent part:

        “However, we have a First Amendment which says that the right of free speech shall not be abridged, and it is addressed, in particular to speech critical of the government. I mean, that was the main kind of speech that tyrants would seek to suppress.”

        The point of all of this is that Trump would be wise to acquaint himself with the right to free speech and to embrace the agenda of liberty, which has or at least should be what unites conservatives. We can achieve “American Greatness” with a more secure border and a more muscular domestic and foreign policy, but the precondition for genuine greatness is liberty, which we cannot do without. As painful as it is for us watch some jerk from Berkeley to burn the American flag the Constitution guarantees him his right to do so. If we take the right of free speech away from the jerk in Berkeley it’s not a long leap for us to take the right to bear arms or to right to due process from the rest of us.

      • Scalia was well acquainted with the right to free speech and he felt free to express his personal opinion on flag burners.
        The author is expressing his opinion. Those that feel the way they do are hardly alone. It’s vile behavior, disrespectful, and yes, disgusting to many (probably to a majority of people; and that is not something new); as is Westboro Baptist’s vile protests at military funerals. But again: much alarm about nothing. The presidency of DJT is not going to usher in a Congress which amends the Constitution to take these rights away. Nothing to see here.
        But discussing the issue in places like American Greatness is a very ‘American’ thing to do; we do that with our right to speech: we talk about it, from all angles.
        I understand you are concerned. I am not. Many are, many aren’t.

      • Yes, there is the bulwark of our rights that it is extremely difficult to amend the Constitution for any reason, including curtailing the scope of our rights, yet we have on our hands on a president-elect who either actually believes that 1) one should have his citizenship stripped from him if he burns the American flag or 2) he proclaims a belief to the world that he in fact does not hold.

        You may sleep well at night knowing that amending the Constitution to curtail the scope of your rights is extremely hard to pull off, but there are myriad ways in which our rights can be curtailed in practice. The president-elect has shown almost no interest in even the rhetoric of freedom (nor have the writers here at “American Greatness”), which should be of some concern to you. By all means we can build a wall and impose tariffs on imported goods, but it is our freedom that makes the United States so different, and better — and greater — than Russia and China, who also have walls and stiff tariffs, but whose people suffer in tyranny. Better to live free than not free, with or without a massive wall and stiff tariffs.

        The authors of “American Greatness” have lost sight of what truly makes America great, that among many other indicia of true greatness we tolerate dissenting voices. Without the right to dissent we would not have had the conservative movement, the Tea Party and now the Party of Trump (the Party of Lincoln and what it once stood for is dead, the last nail driven into thee coffin in Cleveland), a party whose leaders suddenly embraces the rhetoric of suppression of free speech. Hopefully it’s just rhetoric and will not become reality, but reality begins with rhetoric. If it comes to pass that Trump was serious about suppressing free speech and begins “opening up the libel laws” and more, we can thank the authors of “American Greatness” for giving him the intellectual cover to do so.

      • I’m saying that Scalia, and the SCOTUS dissenters, and MCs, and many many others in positions of power felt the same way as the author – and as DJT- yet here we are: right still in tact.
        Party, this opinion is not new; it didn’t just happen; it didn’t spring up because DJT tweeted about a flag burning protest. It’s been (just) one opinion for a long time. Not worried.

      • Yes, we all have our opinions about what is right and wrong, but the point is that the First Amendment does not allow us to legislate our individual rights on the basis of our own individual opinions about what is right and wrong. For example, I’m personally horrified by rap music that glorifies cop-killing and drug abuse but I wouldn’t proposing banning such music as it is protected speech just as much as Bach and Johnny Cash. I’d love to ban it and might be tempted to do so if I were “king”, but the First Amendment protects rap artists from my personal agenda.

        This debate had indeed gone dormant for decades until Trump’s tweet and now this professor’s blog post here on “American Greatness”. The impact of Texas v. Johnson is nothing like the impact of Rose v. Wade, which has been endless debated every single day since 1973. The vast majority of Americans came to accept flag burning as protected speech, even if we didn’t like it. In contrast, America remains a bitterly divided country over the right to life and there have been numerous legislative efforts to protect life at the federal and state level over the last 43 years, and ongoing litigation that has ended up at SCOTUS to ascertain the constitutionality of these statutes. Since the majority opinion which Scalia joined there has been very little public debate as to whether flag burning is or is not protected speech as it has become settled law and widespread social acceptance that it is.

        You have every reason to be “not worried”, as Trump won’t waste political capital on such a fool’s errand. But we see the erosion of understanding and support for our founding principles on a pro-Trump blog ostensibly dedicated to American greatness titled “American Greatness”. Much ado about nothing in the end, as this blog gets far less traction in the Trump world than Breitbart News and Radix Journal, but it is cause for dismay nonetheless.

      • All I can say is Trump is engaged in rhetoric, while you (PoL) want to engage in a dialectic. It’s just that simple. Cheers.

  12. This is pure idiocy and yet another lawyer who wouldn’t understand the Constitution if he tripped over it.

  13. This is a perfect example of the sort of triviality that a successful and significant modern political conservatism needs to just ignore. Even were Trump’s proposal serious, which I believe it isn’t (as do some other commenters, apparently).

  14. The author doesn’t appear to understand “the common good” either. The common good isn’t jailing someone for exercising his freedoms. The word “common” means “universal” with a particular group.

  15. If you want to see someone go crazy and backtrack on free speech burn a rainbow flag. It is a hate crime.