But in response to Trump’s outlandish suggestion on Tuesday that anyone who dares burn the American flag should be punished ― a possibility the Supreme Court squarely foreclosed more than 25 years ago ― McConnell stood on the Constitution’s side.
“The Supreme Court has held that that activity is a protected First Amendment right, a form of unpleasant speech,” McConnell said. “And in this country we have a long tradition of respecting unpleasant speech. I happen to support the Supreme Court’s decision on that matter.”
McConnell has spoken up on the issue before. In 2006, he was one of only three Senate Republicans who opposed a constitutional amendment that would’ve allowed Congress “to prohibit the physical desecration of the flag of the United States.”
At the time, he penned an op-ed that called flag-burners “degenerate attention-seekers.” But he ultimately warned against carving out constitutional exceptions that may later open the door to gutting other civil liberties.
“The solution to such offensive expression is more freedom, not less,” the Kentucky senator wrote. “More freedom will reveal the abhorrent falsehoods behind flag desecration. And as our courageous soldiers on the battlefield continue to demonstrate every day, freedom is the most potent weapon Americans have.”
As fate would have it, the late Justice Antonin Scalia ― whose seat Trump hopes to fill once he takes office ― feels more or less the same as McConnell.
In 1989, Scalia provided the key vote in a landmark decision that declared flag burning was protected activity. But nearly 25 years later, he still had his misgivings about the practice.
“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said during a public appearance a few months before his death. “But I am not king.”