While president-elect Donald Trump has taken flack from civil libertarians for his sudden resurrection of the flag-burning issue, it’s worth noting that his former general election opponent Hillary Clinton once came under fire from liberal allies for sponsoring a bill that aimed to throw those who burned the flag in prison.
Clinton’s stance on flag-burning is complicated to say the least. In theory, she has consistently opposed a flag-burning amendment, and voted against it when it came up for a vote in 2006. But a year earlier, she sponsored a bill that was widely seen as a runaround the Supreme Court precedent outlawing the desecration of flags.
The Flag Protection Act of 2005 would have banned “destroying or damaging a U.S. flag with the primary purpose and intent to incite or produce imminent violence or a breach of the peace,” punishable with a year in prison. In theory, that was different from previous flag-burning bills, which banned all flag burning. In support for the bill, Clinton cited the Supreme Court’s 2003 decision in Virginia v. Black, which found that bans on cross-burning were unconstitutional, but constitutional when limited to incitement and threats of violence.
Clinton’s bill earned her a rare rebuke from the editorial page of The New York Times. “Senator Clinton In Pander Mode,” declared The Times, arguing that the logic behind the bill’s constitutionality was flimsy. “A black American who wakes up to see a cross burning on the front lawn has every right to feel personally, and physically, threatened. Flag-burning has no such history. It has, in fact, no history of being directed against any target but the government,” they noted.
Liberal Washington Post columnist Richard Cohen agreed, calling the bill “Star-Spangled Pandering” in “a cutesy way that does not explicitly outlaw all flag burnings — just those intended to ‘intimidate any person or group of persons.’ That’s a distinction without a difference to your average police officer.”
Arianna Huffington was also a vocal critic. “It seems in line with her stance on so many issues — trying to strike right in the middle and triangulate, by not supporting the amendment because that would upset the base too much and at the same time supporting a legislative proposal that will appeal to the center,” she said. “It’s a truly tragic way of leading.”
The biggest difference between Clinton and Trump’s proposals is of course that Clinton never supported stripping flag-burners of their citizenship, as Trump suggested Tuesday. Current Supreme Court precedent does not allow Congress to involuntarily strip natural born citizens of their citizenship.
[Image via Shutterstock]
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