Trump's Flag-Burning Tweet Brings Back 1980s-Era Controversy

By Don Gonyea

Published November 29, 2016 at 11:09 AM EST

Updated at 3:18 p.m. ET with McConnell reaction

With an early morning tweet, President-elect Donald Trump revived an issue that hasn't been front and center in American politics for more than a quarter-century.

Flag burning.

Here's what Trump posted at 6:55 a.m. ET:

Trump may have been inspired by protests over the weekend at Hampshire College in Amherst, Mass., where school administrators took down all flags on campus after an American flag was burned by students.

But there's a big catch to Trump's proposal.

A 1989 Supreme Court decision, Texas v. Johnson, said burning the flag is a protest protected by the First Amendment. Among those voting with the court majority in that case was the late Justice Antonin Scalia, who died in February, and whom Trump has repeatedly cited as a model for the kind of justice he would appoint to the nation's highest court. Scalia's seat on the bench remains unfilled, after the Republican-controlled Senate refused to hold hearings on President Obama's choice to replace him. That likely means nominating a new Supreme Court justice will be among Trump's first tasks after taking office.

Trump's surfacing of the flag-burning issue feels like a flashback to 1988, when Vice President George H.W. Bush, then campaigning for president, visited a flag factory in New Jersey.

Nine months later, after he had moved into the Oval Office, Bush called for a constitutional amendment to protect the flag from protesters, saying, "Flag burning is wrong, dead wrong," and adding, "as president, I will uphold our precious right to dissent, but burning the flag goes too far and I want to see that matter remedied."

But President Bush did not call for a revocation of the citizenship of those who would burn the flag in protest.

Congress, then controlled by Democrats, passed the so-called Flag Protection Act in response to Texas v. Johnson, although it also was ruled unconstitutional by the Supreme Court by an identical 5-4 vote.

Which brings us back to Trump's tweet.

In an appearance on CNN, transition spokesman Jason Miller seemed at a loss to explain his boss's latest missive.

Miller called flag burning "completely ridiculous" and said few people actually support flag burning before changing the topic and talking about the new administration's Cabinet picks.

When pressed, Miller wouldn't say whether Trump recognizes that the Supreme Court says flag burning is constitutionally protected speech, saying only that "most Americans feel that flag burning should be illegal."

The president-elect did get some pushback from Senate majority leader Mitch McConnell, R-Ky. For his part, McConnell says the U.S. Supreme Court has spoken on the subject of flag burning, adding that the Constitution protects even "unpleasant speech," before adding, "I happen to support the Supreme Court on that matter."

The incident raises several questions as the transition continues.

Will potential Trump nominees to the Supreme Court need to share his view on flag burning?

Why does the president-elect disagree with the late Justice Scalia, whom he professes to greatly admire, on this issue?

And finally, is this tweet stirring up a decades-old controversy just to distract from other stories coming out of the Trump transition, including potential conflicts of interest involving his global business dealings, or the infighting within his own team over who should occupy key Cabinet positions such as secretary of state?

Or was this just something Trump decided to impulsively tweet about in the early hours of the morning?