Tuesday, November 29, 2016

In Case You Were Wondering: "No, You can't strip flag-burners of citizenship" and flag burning is not a crime ...


Eugene Volokh at the Volokh Conspiracy has the low down on last night's tweet.

"Contrary to President-elect Donald Trump’s tweet, even if flag-burning weren’t protected by the First Amendment (and it is), you couldn’t strip people of their citizenship for it. 
Let’s begin with the constitutional text, here from section 1 of the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 
Once you have American citizenship, you have a constitutional entitlement to it. If you like your American citizenship, you can keep your American citizenship — and that’s with the Supreme Court’s guarantee, see Afroyim v. Rusk (1967)
"There is no indication in these words of a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other governmental unit."
(Special bonus in Afroyim: a cameo appearance by a Representative Van Trump in 1868, who said, among other things, “To enforce expatriation or exile against a citizen without his consent is not a power anywhere belonging to this Government. No conservative-minded statesman, no intelligent legislator, no sound lawyer has ever maintained any such power in any branch of the Government.”) In Vance v. Terrazas (1980), all the justices agreed with this principle."
Read the whole thing HERE, including a couple of fine points...., and be sure to check back to Volokh Conspiracy when First Amendment concerns arise, which is bound to happen under this incoming administration.

Follow me on Twitter @RolandNikles.

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