If you own a flag and if you are allowed by your municipality to burn its material outside in a safe manner and at a safe time, then, according to libertarian theory, you have the right to burn this flag outside on your property. You might need a permit. You have the right to burn it inside too; a fireplace is a safe way. You need only obey your municipal ordinances. There are no state or federal laws specifically against such rites of oxidation, unless some authority invokes some obscure rule about pollution, endangering a species, second-hand smoke or some other such thing. Barring these trumped up charges, man-made combustion of a flag is a right because there is no physical aggression against anyone owing to this combustion. Burning an old or worn out flag on your property is always acceptable; we can in this case only be considering the combustion of flags in decent shape.
If you tear down a flag on someone else’s property, you are obviously trespassing and, if the flag’s property value is modest, committing a misdemeanor. If you burn it on their property or elsewhere, that is the greater crime of arson. Libertarians agree that aggression is involved; they may evaluate these infringements in different ways than a state does.
If you tear down a flag that’s on public property and/or burn it, it’s similar in the state’s eyes to doing the same thing to your neighbor’s flag. You may be charged as a vandal.
If you buy a flag and burn it on a public street alone or as part of a demonstration, you need a permit. At worst the state can charge you with a misdemeanor if you don’t get a permit. In such demonstrations, you can always desecrate a flag in a great many ways.
There are other possibilities. People often have flags outside their homes. You might create a desecrated version of such a flag that shows through your windows or is hung outside. This is obviously allowable as part of your property rights under libertarian law. It is also allowable under U.S. law, where it is construed in an arcane fashion as being allowable expression under the First Amendment. The libertarian justification is much clearer, much simpler, and much more understandable as a part of property rights. It is more consistent with other property rights. Most importantly, the libertarian elucidation of your flag-burning or flag desecration right does not require a separate free speech rationale. Of critical importance is that the libertarian view doesn’t depend at all on the Constitution or constitutional interpretation by the Supreme Court, both of which are very cloudy and convoluted, so much so that the Court’s last decision in 1989 that allowed flag-burning as an expression of free speech was by a 5-4 decision.
The House has passed amendments to the Constitution banning flag desecration. The Senate in 2006 missed passing it by one vote. If Trump pushes for such an amendment, he may get it passed by Congress. Then would start the process of individual states approving or disapproving. It’s obvious that such an amendment or law has a single purpose: maintain the authority, acceptance and dignity of the U.S. government by suppressing visible and dramatic acts of peaceful resistance. In other words, the government fears that flag-burning incites and encourages further resistance among the multitude. It wants protests to be mild, small, divided and forgettable, leading to no restraint or constraint upon its own powers.
In my opinion, it’s ridiculous to change the Constitution for such a trivial matter. Constitutions are supposed to deal in general principles, not such specifics as flag-burning. This effort shows a misunderstanding of the gravity of a constitution. It also shows weakness and fear on the part of the government; and it reflects too a substantial degree of anti-flag burning emotion (hatred and fear) on the part of government officials and some voters toward protesting segments of American society.
I will assume that when Trump raises an issue, he has a motive for choosing that issue and the timing of his statements about it. In the case of flag-burning, he tweeted “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” Since the existing laws do not conform at all with his suggestion, this establishes a goal for him and an encouragement for Congress again to try to pass an amendment. This is a very cheap way for him to pay back some of those who voted for him who have nationalistic sentiments like his own. They get some gratification. He dispenses it at no real cost. This issue has no budget and economic implications. It is entirely psycho-social. He signals that he means to carry out his nationalist agenda. Because of the flag’s association with the military, he positions himself again as a strong supporter of the military; and that positioning may allow him to go against the military if and when he wants to. Trump gains flexibility and keeps his options open. It is much easier for Trump to say no to future interventions and to converse amicably with Putin, if that’s what he really wants, by enhancing the military budget, by criticizing Iran, and by standing up for the flag. The domestic political angle of his flag-burning tweet cannot be overlooked either. It is already being made widely known that Hillary Clinton in 2005 was a co-sponsor of a flag protection act. The Left will get very excited about Trump’s statement and take it as further evidence of all the extremist labels they’ve been pinning on him for weeks now. Their overheated rhetoric is going to marginalize them even more and solidify Trump’s base. Anything that Trump does that’s even remotely “moderate”, such as appointing women or people of color to high posts, will make Trump look reasonable and make the leftists look like kooks.
It seems to me that Trump, whether intuitively or via calculation, is cleverly exploiting the flag-burning issue, which is certainly a minor and trivial matter of no great importance, to his own benefit.
Addendum: Clever people will run circles around such an amendment and show the government’s foolishness at such an attempt to control behavior. Will a cartoon that shows the burning of a flag be banned? Will a story that has a flag burning in it be banned? What will happen to substitutes for flag-burning? The government has other symbols, songs and heroes. Will every parody and mutilation of these in a symbolic manner be punished? An anti-flag burning amendment is really a very, very stupid idea. It gains points for Trump, but it’s still a stupid idea, rather like price controls.
It is not even clear what a flag is. There is an infinite number of substitutes. One can subtract a portion of a star or stripe or alter a color. Will an amendment define what a flag is? Will courts adjudicate whether or not a substitute flag is actually a flag?
1:14 pm on November 29, 2016
