Sen. Josh Hawley of Missouri has apparently heeded President Donald Trump’s call for a ban on flag burning. The senator is reportedly working on legislation to punish those who burn the American flag with up to one year of imprisonment.

Hawley and Trump might want to brush up on the Constitution before doing so.

“These are animals, but they proudly carry the flags of other countries. They don’t carry the American flag. They only burn it. Did you see a lot of the flags being burned?” Trump asked this week while addressing a crowd of servicemembers at Ft. Bragg.

“They weren’t being burned by people from our country, or from people that love our country. People that burn the American flag should go to jail for one year,” Trump continued. “We’ll see if we can get that done. We’re going to try and get that done. We’re working with some of your senators.”

That all sounds like standard rhetorical red meat for conservatives, which is what it is as long as it doesn’t cross into the world of lawmaking. But, since we’re talking about the president of the United States and a senator, this is where we are.

To be sure, this isn’t the first time Trump has floated the idea of criminalizing flag burning and the idea has long been a talking point among Republicans.

But the U.S. Supreme Court has long settled this matter. In Texas v. Johnson (1989) and United States v. Eichman (1990) the court reminded us: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

The court continued in Johnson, “The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.”

Signing on to this was Justice Antonin Scalia, no liberal woke progressive, who recognized that the Constitution cannot be trampled simply because it’s in the way.

“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he said in a 2015 address at Princeton University. “But I am not king.”

Indeed, neither Trump nor Hawley are kings either. They can say whatever they want and they can feel whatever they do about flag-burning, but they should not go down this road.

After all, it is not lost on the average American that those who burn the American flag are almost always doing so to express bizarre, radical causes.  The best response is not to bring down the heavy hand of the state but to allow fools to out themselves as such and face the wrath of public opinion.

— From Tribune News Service