The President-Elect is at it again:
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
Leaving aside the Supreme Court precedents recognizing that flag burning is not only legal, but is constitutionally protected (or the reasons why, as helpfully articulated by Aaron Sorkin through the lens of fictional President Andrew Shepherd in The American President), the darker, more insidious piece of this tweet is the suggestion that “loss of citizenship” is an appropriate penalty for even appropriately proscribed conduct. Just to be clear, it isn’t.
David Cole and I have both written at length previously in this space about why expatriation as a punishment is generally unconstitutional. In a nutshell, the Supreme Court has repeatedly insisted that the Constitution requires expatriation to be based upon some voluntary, affirmative renunciation of citizenship or pledge of fealty to another sovereign–and not simply a punishment imposed by the state. Coercive expatriation, in contrast, violates some combination of the First and Fifth Amendments insofar as it is not based on the citizen’s “assent.” And although current federal law does identify one circumstance in which a citizen can be expatriated without such a voluntary, affirmative renunciation, that exception (where a citizen has been convicted of treason) may very well be unconstitutional–and, even if it isn’t, actually proves the rule: A treason conviction requires proof beyond a reasonable doubt (including the testimony of two witnesses to the underlying overt acts) that the citizen has “levie[d] war against” the United States or “adhere[d] to [our] enemies,” both of which are voluntary, affirmative acts closely analogous to the kind required by the Supreme Court for renunciation. Burning a flag–or, more seriously, providing material support to terrorist organizations–doesn’t come within a light-year of what the Supreme Court has required, even when (unlike in the flag-burning context) the conduct rises to the level of a serious federal crime.
To suggest otherwise is not only to ignore decades of remarkably consistent Supreme Court precedent and even more basic principles of American constitutional law; it is to demean the continuing constitutional significance of citizenship. Sadly, I fear this is not the last we’ll be hearing about expatriation…