To Trumpeters and fellow conservatives, burning of the flag only serves as a further extension of the disrespect others have of their beloved nation and subsequently, although illogical, disrespect of armed forces and veterans. Beginning with the countless protests by Black Lives Matters two years ago to the more recent displays of dissent by football players starting with San Francisco 49ers quarterback Colin Kaepernick, many gung-ho Americans have been up in arms (literally at times) over these acts. Now with their holy Trump taking over the White House, they believe order will be restored and the streets will be cleared of these devout First Amendment protesters.
While flag burning was deemed constitutional and protected under the First Amendment by freedom of speech in the 1989 Supreme Court case Texas v. Johnson, some believe that Trump will have the power to overturn this ruling once he installs new justices to the Supreme Court. At the moment, it seems the reality tv star will have an immediate opportunity to fill the bench as the Senate continues to stall with President Barack Obama’s nominee, and it will very likely return to a conservative slanted courthouse.
What remains in question is how will a flag protection act be enacted, as the Senate will need a supermajority to pass any legislation, needing at least 10 additional votes from across the aisle. While some Democrats may be hard-pressed, especially if they are vulnerable to be voted out in mid-term elections, arguably they might form a coalition that vows to not work with Republicans just as the GOP had done for the past 8 years. Maybe the Trump administration can single out certain Democrats that feel flag-burning is unpatriotic, but it will not be easy.
If and once the legislation passes, will it be automatically implemented or will it need to pass various hurdles as again the Supreme Court had already decided bans on flag burning were unconstitutional? And if it does reach the highest court in the land, how will it be decided?
If the Texas v. Johnson case is any indication, it might be not be as easy as some Trump and other Conservatives like to believe. The case was a 5-4 split, with liberal Justice William Brennan writing the opinion that “burning of the flag constituted expressive conduct.” What was perhaps most astounding about the case is two of the Justices that sided with the majority included Republican-leaning judges such as the late Antonin Scalia and current Justice Anthony Kennedy, with Kennedy providing a concurrence stating “…sometimes we must make decisions we do not like. We make them because they are right….”
Therefore, so long as Kennedy still believes that flag burning is protected speech and the four liberal Justices side with him, any legislation banning such an act will be deemed unconstitutional. This is not all too clear either, as the original case found some liberals against flag-burning, and Justice Sonia Sotomayor has shown that she is above partisan politics when deciding Supreme Court cases.
In conclusion, burning of the U.S. flag will remain a staple in the protests against Trump and all he stands for, and an eyesore to those that champion the symbol over other issues plaguing the nation, at least for another two years. Until then, protests shouldn’t forget to bring some chestnuts to roast over that open fire while they freeze their buns in front of Trump Tower.

