“If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” Scalia said in 2015 when asked about the ruling. “But I am not king.”
In the case, Texas v. Johnson, Scalia voted with the majority finding that the First Amendment protects the right to burn the flag.
“The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong,” the 1989 majority opinion read. The case was brought over the prosecution of a Texas man who burned the flag during the 1984 Republican National Convention in Dallas.
From time to time a bill seeking to amend the Constitution to include a penalty for desecrating the flag has made its way to the Senate. The most recent attempt at a flag desecration amendment failed by one vote in the Senate on June 27, 2006.
A year before that, then-Sen. Hillary Clinton co-sponsored legislation, though not a constitutional amendment, that would make flag burning illegal. Clinton, however, voted against the 2006 bill to amend the constitution.
The response to Trump’s tweet on Tuesday was swift.
House Majority Leader Kevin McCarthy (R-California) told Willie Geist on MSNBC's "Morning Joe" Tuesday that while he does not agree with burning the American flag he does see the action as constitutionally-protected free speech. “We'll protect our First Amendment," McCarthy said.
Jason Miller, Trump's communications adviser, was questioned by CNN’s Chris Cuomo on “New Day” Tuesday about the tweet, but tried to deflect the question with news of Trump’s selection of new cabinet picks.
"Chris, flag burning is completely ridiculous. And I think you know that and I think the vast majority of Americans would agree," Miller said.
"But legal," Cuomo answered.
"But Chris, it's completely ridiculous. And I don't think there's a big universe of people out there who support flag burning. It's terrible and it’s despicable," Miller said.
While the conversation went on for a minute or so more, Miller pivoted to the news that Rep. Tom Price (R-Georgia) would be named secretary of the Department of Health and Human Services, but ended the flag burning conversation by saying, "Flag burning should be illegal. End of story. Let's get in and talk about how we're going to repeal and replace Obamacare and these fantastic picks that the president-elect announced this morning."