U.S. Sen. Mitch McConnell understands President Donald Trump’s push to criminalize burning the American flag. He’s been there before.
During his first term in the U.S. Senate, after serving as Jefferson County’s judge-executive, McConnell co-sponsored constitutional amendments that would have allowed federal and state governments to ban physical desecration of the U.S. flag, in response to a Supreme Court ruling that found the action was covered under the First Amendment as a form of free speech.
McConnell’s thinking changed, though. Amid another GOP-led effort to ban flag burning five years later, in 1995, he published an op-ed in the Washington Post that applauded his colleagues’ intent — “they are motivated by the highest principles,” he wrote — but argued against amending the constitution to deem it an illegal act.
“Those who burn the flag deserve our contempt, but they should not provoke us to tamper with the First Amendment,” McConnell wrote. “After all, among the values the American flag symbolizes is free speech, even those ideas with which we disagree. … And while the act of flag-burning is deeply offensive, it is hard to draw the line when enforcing standards of patriotic correctness.”
Sen. Mitch McConnell speaks at the Kentucky Capitol in January 2024. McConnell supported criminalizing burning the U.S. flag early in his career but his opinion shifted years later.
The senator would join three other Republicans in voting against another similar proposed amendment in 2006 — “without my vote,” he told The Courier Journal in an Aug. 28 interview, “it would have gone to the states and probably have been ratified.”
It’s a position he maintains nearly two decades later.
“Justice (Antonin) Scalia had it right,” McConnell said, referencing the conservative Supreme Court judge who supported the chamber’s ruling more than 30 years ago. “It’s offensive speech … but you don’t amend the First Amendment to the United States Constitution.”
McConnell’s comments came three days after Trump signed an executive order seeking to “restore respect and sanctity” by directing the attorney general to “vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag.”
It also calls on U.S. officials to deny or revoke visas for foreign nationals in the country who have burned the flag and for the attorney general to pursue a case that would challenge the decades-old Supreme Court ruling that found flag-burning is protected by the constitution.
Trump has said he believes one year in jail is an appropriate punishment. And Attorney General Pam Bondi said she believes prosecutions for burning the flag could be accomplished “without running afoul of the First Amendment.”
But prosecuting people who burn the American flag would be “impossible to enforce,” McConnell said, referencing U.S. Department of Defense guidance on etiquette for disposing of old flags in a dignified manner.
“The appropriate way to destroy a worn-out flag is to burn it,” McConnell said. “So you’d have courts all clogged up with what’s constitutional and what isn’t.”
A stack of American flags were burned at a retirement ceremony in June 2019 in Shelby County. The U.S. Department of Defense recommends burning flags in disposal ceremonies to respectfully dispose of them.
Trump “I think conceded in his executive order that it’s unconstitutional,” the senator added. The order acknowledges the Supreme Court’s previous ruling but pushed for prosecution in cases where burning the flag is “likely to incite imminent lawless action.”
In a landmark 5-4 ruling, the U.S. Supreme Court determined in 1989 that burning the flag constitutes a form of “symbolic speech” legal under the constitution.
The court has changed since then, though, with a 6-3 conservative majority. Several current Supreme Court judges were appointed with McConnell’s backing, including Justice Neil Gorsuch, appointed in 2017 after McConnell held the seat open during then-President Barack Obama’s last year in office, and Justice Amy Coney Barrett, appointed in the final weeks of Trump’s first term after the death of then-Justice Ruth Bader Ginsburg.
Representatives for U.S. Sen. Rand Paul, McConnell’s Kentucky counterpart in the chamber, did not respond to a request for comment on his position. In a social media post, Vice President JD Vance said he believes the precedent-setting decision more than 30 years ago was “wrong” and said the executive order does not violate the constitution.
McConnell said he believes the current Supreme Court would uphold that 1989 ruling.
“We’ve never amended the First Amendment,” McConnell said. “We’ve had interpretations of what the First Amendment means, but there’s not been any constitutional amendment adopted to take a chunk out of the First Amendment — and we shouldn’t do that.”
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Reach Lucas Aulbach at laulbach@courier-journal.com.
This article originally appeared on Louisville Courier Journal: Mitch McConnell says burning US flag is ‘offensive’ but constitutional