posted at 6:21 pm on November 29, 2016 by Jazz Shaw
I know… I know… we’ve sort of beaten the whole “Trump wants to jail flag burners” thing to death today, but there’s just so much juice left in that tasty, tasty fruit. Earlier this morning, Ed Morrissey set forth the basics of why this should essentially be a constitutional non-starter. Later on, Allahpundit speculated on the Kremlinology of Trump’s tweet and what it might mean on the eight dimensional chess board. But in the rush to condemn Trump for making what may or may not have been a serious policy proposal on his Twitter feed, one little thing was overlooked. Hillary Clinton did more than talk about it on social media. She co-sponsored a bill in the Senate to criminalize it in 2005. (Fox News)
Donald Trump came under heavy criticism Tuesday after calling for the criminalization of burning the American flag, with critics gasping that the president-elect’s words represent a threat to the First Amendment. However, Trump’s suggestions are similar to a bill pushed in the Senate in 2005 that would criminalize flag burning – a bill that was co-sponsored by then-Sen. Hillary Clinton…
In 2005, Clinton co-sponsored the Flag Protection Act which, while it did not call for the stripping of citizenship, made flag burning with the intent to incite violence or disturb the peace punishable by a year in jail and a $100,000 fine.
The bipartisan bill, introduced by Clinton and then-Sen. Bob Bennett, R-Utah, never made it out of the Judiciary Committee, but was floated as a compromise to a proposed constitutional amendment that would ban flag burning.
Clinton was criticized for her stance then, although the criticisms leveled at her targeted Clinton’s perceived political slipperiness, rather than her representing a threat to constitutional liberty. A New York Times piece accused the senator of being “in pander mode.”
One thing to keep in mind is that legislators try to work their way around various Supreme Court decisions all the time. When one bill fails, they can try again with some different wording and see if they can craft something that will survive a challenge. If you really need examples of that, just look at the number of abortion bills which have been passed in various forms since Roe v. Wade was decided. In Clinton’s case, they added in the phrase, “with the intent to incite violence or disturb the peace.” We may never know if that one would have passed muster because it never made it out of committee.
With that in mind, I suppose you won’t be shocked to see that the media feeding frenzy around Clinton at the time didn’t seem to be nearly as ferocious, accusing her of “pandering” rather than endangering the stability of our democracy. A constitutional crisis is in the eye of the beholder I suppose.
Since we’re back on the topic anyway, I wanted to take a moment and revisit AP’s Kremlinology analysis for a moment. Nobody can truly read what’s found deep in The Donald’s heart, but if I had to optimistically pick one choice on the list it would be more along the lines of what Jim Geraghty was speculating. Is it possible… perhaps even probable, that Trump is tossing out comments like that just to drive his detractors further over the edge? If he could goad a few of the marchers to begin setting Old Glory on fire in the streets of Manhattan, surely Trump realizes that public opinion in most places would begin turning against them.
Or maybe it’s not that deep. Perhaps it’s the earlier option on the list where Trump is simply trolling the Democrats at Master level and sitting up in his tower laughing his behind off. There’s a quote out there somewhere which I believe was attributed to Teddy Roosevelt, where he said that no man had ever enjoyed the presidency more than he did. I don’t know how things will be when he actually has to do the job, but I believe that no man has enjoyed running for president more than Donald Trump. And he’s still enjoying it now.
There was one other possibility. I don’t fall into the “it’s a distraction” conspiracy theory school, but I see others signing on to that concept. My wife recently tweeted something about this being the Zaphod Beeblebrox presidency. (He’s just a distraction meant to draw your attention while the real powers in the world do their dirty work.) If that turns out to be the case I just hope somebody let Trump in on the plan.
Either way, I just wanted to add this as a quick addendum to the rest of the flag burning word festival. And I’d also include a note to my friends in the media. When you’re still criticizing Trump for suggesting such a thing this evening (and you will be), pause and ask yourself how hard you came down on Hillary Clinton when she sponsored a bill to do precisely that.