The Flag, The First Amendment, and The Tenth

President Donald Trump’s denunciation of anti-ICE protesters in Los Angeles as “animals” who should face an “automatic” one-year jail sentence for burning the American flag is not merely the heated rhetoric of a president confronting civil unrest.

It is a direct and frontal challenge to bedrock constitutional principles—a flashpoint where presidential authority, the sanctity of free speech, and the sovereignty of states collide with explosive force.

The official narrative is one of restoring law and order against violent rioters. But the president’s proposed actions and the defiant response from state leaders raise deeper, more unsettling civic questions: In our quest to punish acts we find repugnant, are we willing to dismantle the very constitutional guardrails that define our republic?

The First Amendment Was Written for Speech We Detest

The Supreme Court, in landmark cases like Texas v. Johnson, has repeatedly affirmed that burning the American flag, however offensive, is a form of symbolic speech protected by the First Amendment. It is not an act of treason to be met with imprisonment, but an expression—however painful to witness—to be protected.

It is in this context that the President’s vow must be examined. Speaking at Fort Bragg, he declared,

“People that burn the American flag should go to jail for one year. We’ll see if we can get that done.”

This raises a stark constitutional challenge. If the highest court in the land has deemed an act to be protected expression, what does it signify when the executive branch vows to criminalize it?

And what legal architecture could possibly support an “automatic” jail sentence for an act the Supreme Court has already placed under its First Amendment shield?

The Tenth Amendment Invoked

This conflict is not confined to the realm of free speech. The deployment of over 4,000 National Guard troops and 700 U.S. Marines to Los Angeles has ignited a fierce battle over federalism and the Tenth Amendment, which reserves powers not delegated to the federal government to the states.

California Governor Gavin Newsom’s response has been nothing short of a direct constitutional challenge. In response to Trump’s threats to go after him for interfering with federal operations, Newsom retorted,

“Come after me. Arrest me… Let’s just get it over with, tough guy.”

This is not simply a war of words between a governor and a president. It is a modern-day constitutional showdown over the limits of federal power.

Newsom’s lawsuit alleges the Trump administration violated California’s rights by federalizing the National Guard for domestic law enforcement—an act that tests the boundaries of executive authority and state sovereignty.

When a governor must sue the President to maintain control over his state’s own forces, we must ask: where are the clear lines of authority, and who has blurred them?

The Rhetoric of Retribution Cannot Be Abstract

Let’s not lose sight of the language being employed by the nation’s top law enforcement officials. Attorney General Pam Bondi, in her first appearance since the protests began, issued a chilling promise reflecting the President’s sentiment:

“As President Trump said: You spit we hit. Get ready.”

This is not a partisan critique of enforcement tactics. It is a structural interrogation of our justice system. Does the principle of proportional response still apply? Does due process have a place in this equation?

When the official posture of the Justice Department becomes “You spit we hit,” it introduces an element of raw retribution that sits uneasily with the constitutional demand for measured and impartial justice.

This Moment Demands Constitutional Fidelity, Not Just Patriotic Fervor

Ultimately, the smoke from burning flags in Los Angeles is obscuring a far more significant conflagration—a battle over the meaning and durability of our constitutional protections. The visceral anger at seeing a national symbol desecrated is real and understandable.

But the principles enshrined in our founding documents were designed precisely for moments of passion and outrage, to prevent them from overwhelming the rule of law.

So we have to ask:

• Is the First Amendment’s protection of symbolic speech conditional, subject to being revoked for ideas or actions deemed offensive by a majority or a sitting president?
• Where does the federal government’s authority to enforce its laws end, and a state’s Tenth Amendment right to self-governance and control over its own personnel begin?
• And how do we, as a nation, reconcile our reverence for a symbol with the foundational principle that protects even the right to disrespect it?

The Constitution does not exist only to protect speech we admire. It was written to defend the speech we abhor. This is one of those moments where forgetting that distinction is not a matter of patriotism, but an abdication of constitutional fidelity we can ill afford.