President - elect Donald Trump has tweet a lot of litigious thing in the middle of the nighttime , but the message that he post at3:55 a.m. back in late November 2016was in particular combative — at least to constitutional scholars and civil shore leave advocates : " Nobody should be allowed to combust the American flag - if they do , there must be consequences - perhaps red ink of citizenship or yr in clink ! "
It was n’t just that Trump became the latest in a long line of politicians to advocate making flag - burning a crime . ( That would require amending the U.S. Constitution , since the Supreme Courtruled back in 1989doing so would profane the First Amendment right wing to exemption of speech . )
He also embark into even more provocative ground , by asserting that the U.S. authorities has the bureau to take away a person ’s citizenship involuntarily — something that at nowadays , it ca n’t do , except in one very narrow condition that we ’ll explain in a mo .
It might seem unknown that the U.S. government can put a put a person in prison house , and even execute someone for crimes , but in most instances lacks the baron to tear up a pass and adjudge that person a noncitizen . But that ’s been the law of the nation ever since 1967 , due to the U.S. Supreme Court decisionAfroyim v. Rusk .
The case involve an American citizen refer Beys Afroyim , who pop off to Israel in 1950 and made the misunderstanding of voting in an election there . That violated a 1940 U.S. law , and the State Department deny to regenerate his American passport , lay claim he ’d forfeit his right field to U.S. citizenship .
But in a 5 - 4 determination , the Supreme Court ruled in favour of Afroyim , deciding that he was protected by the14th Amendment , which granted citizenship to all someone digest or naturalize in the United States .
In the majority opinion , Justice Hugo Black wrote that " citizenship is no light trifle to be jeopardized any moment Congress decide to do so under the name of one of its general or mean grants of power … the very nature of our detached government makes it completely incongruous to have a formula of police force under which a mathematical group of citizens temporarily in government agency can deprive another chemical group of citizens of their citizenship . "
But there are holes in that protection . naturalize U.S. citizens — that is , those who were born in alien countries — can have their citizenship revoked if the governing decides that they fake something in their naturalization paperwork . ( That ’s whathappened to John Demjanjuk , the Ukrainian - born Ohio autoworker convict of do as a guard in a Nazi death camp . ) They also can bestripped of citizenshipif they resist to testify to Congress , join a group that the U.S. government count subversive or are dishonorably clear from the U.S. military .
Also , accord tofederal police force , certain actions — such as traveling to and serving in the armed forced of a country engaged in belligerency against the U.S. , or swearing an oath of allegiance to a foreign country — can be taken tacitly as proof that a person is voluntarily renounce U.S. citizenship . This is where thing get a small tricky , grant to David Bier , an analyst with the Cato Institute , a Washington , D.C.-based think tank car . And although the political science has to prove intent , " it does n’t need to have as high a standard of test copy as it would have to in a felonious trial , " he say . " It ’s based on a preponderance of evidence , as opposed to ' beyond a fairish doubt . ' "
But as Trump ’s critics have note , it ’s one thing to take away the citizenship of an American who joins an enemy military overseas , and another matter entirely to visit that penalty on someone here in the U.S. who is engaging in what the courts have adjudicate is constitutionally protected speech . " [ Flag - burning ] is generally not accompanied by an purpose to foreswear U.S. citizenship , nor is it broadly speaking evidence of any such spirit , " UCLA law prof Eugene Volokh wrote in aWashington Post opinion spell . And it does n’t seem that the terror is being taken seriously by demonstrator , some of whom responded byburning U.S. iris outside Trump Towerin New York .
