Since the terrorist attacks of Sept. 11, 2001, politicians have periodically announced with fanfare that they would introduce a bill to strip the citizenship of Americans accused of terrorism. The idea tends to attract brief attention, but fades away, in part because the Supreme Court long ago ruled that the Constitution does not permit the government to take a person’s citizenship against his or her will.
But on Tuesday, President-elect Donald J. Trump revived the idea and took it much further than the extreme case of a suspected terrorist. He proposed that Americans who protest government policies by burning the flag could lose their citizenship — meaning, among other things, their right to vote — as punishment.
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
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
Mr. Trump wrote the post shortly after Fox News aired a segment about a dispute at Hampshire College in Massachusetts, which removed the American flag from its campus flagpole after protests over his election victory; during one demonstration, someone burned a flag.
Even if Mr. Trump were to persuade Congress to enact a criminal statute, a dramatic shift in the balance between government power and individual freedom, anyone convicted and sentenced could point to clear Supreme Court precedents to make the case for a constitutional violation.
The obstacles include the precedent that the Constitution does not allow the government to expatriate Americans against their will, through a landmark 1967 case, Afroyim v. Rusk. They also include a 1989 decision, Texas v. Johnson, in which the court struck down criminal laws banning flag burning, ruling that the act was a form of political expression protected by the First Amendment.
