Former President Donald Trump is once again doubling down on a flagrantly unconstitutional punishment for protesters, MSNBC legal journalist Jordan Rubin wrote on Thursday.
He was referring to a Trump proposal of jail sentences for people who burn the American flag in response to anti-Israel protesters at the Democratic National Convention in Chicago — an idea he also suggested earlier this summer.
It's a suggestion that has been pushed by some on the right for decades but it's not compatible with the Constitution, Rubin wrote.
"The legal problem with that proposal is that it violates the First Amendment," wrote Rubin. "The Supreme Court addressed the issue in the 1989 case Texas v. Johnson, when conservative icon Antonin Scalia joined the high court majority in deciding that a conviction for burning the flag was unconstitutional" — a justice that Trump has praised and who he replaced with a like-minded jurist in Neil Gorsuch.
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Legal experts have expressed alarm over Trump's other seeming dismissals of the Constitution's validity, from reports that he called for it to be "terminated" so that he could be reinstated as president, to his promise that he would be a dictator "on day one."
It also comes, Rubin noted, at a time when Democrats are trying to seize the opportunity of Trump's increasingly authoritarian rhetoric to brand themselves as the party of personal freedom.
Ultimately, wrote Rubin, "It’s unsurprising that the man who flouted his constitutional oath the first time around should lack the understanding, appreciation of both of the law and the freedoms it secures."
