The late Supreme Court Justice Antonin Scalia stressed that flag burning is protected by the Constitution — even if he doesn’t think it should be.
In 1989, the Supreme Court handed down a decision in Texas v. Johnson, which found a man named Gregory Lee Johnson had a Constitutional right to burn the American flag during the Republican National Convention.
Scalia sided with the majority in that case, which found the First Amendment protects political expression like setting the stars and stripes on fire. That doesn’t mean the 78-year-old justice likes flag desecration, but it’s the justices’ job to interpret the Constitution, not to pass moral judgment, Scalia has said repeatedly.
“I hate the result [in Texas v. Johnson],” Scalia, who died earlier this year, said at a 2014 question-and-answer session sponsored by Brooklyn Law School.
“I would send that guy to jail so fast if I were king,” he added, then referring to Gregory Lee Johnson as a “bearded weirdo.”
President-elect Donald Trump, who has said he would like to appoint a Supreme Court justice in the mould of Scalia to replace him on the bench, suggested Tuesday that flag burning should be criminalized.
“Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!” Trump wrote on Twitter.
Johnson was with several dozen other protesters when he poured kerosene on an American flag and lit it on fire during the 1984 Republican National Convention in Dallas, The New York Times reported in 1989. The protesters then chanted, “America the red, white, and blue, we spit on you.” Johnson was convicted of violating Texas’ flag desecration law, fined $2,000, and sentenced to a year in prison.
In overturning Johnson’s conviction, Scalia signed onto an opinion written by one of the court’s most iconic liberals, William J. Brennan. Scalia’s vote may have surprised some people, but it was not the last time the conservative justice would shock people in the interest of upholding Constitutional principles.
An earlier version of this story was written by Erin Fuchs.
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