It is incorrect to compare Donald Trump’s terrifying tweet about stripping citizenship from flag-burners to a bill offered by Hillary Clinton in 2005

Constitutional lawyer here. Let’s talk some sense.

Donald Trump just proposed stripping people who burn the flag of U.S. Citizenship. Such a law would, of course, be a violation of the First Amendment. See the Supreme Court’s opinion in Texas v. Johnson, 491 U.S. 397 (1989).

But that doesn’t seem to bother Trump:

when creeping fascism stops creeping and starts galloping

In response, a number of right-wing commentators have pointed out that Hillary Clinton, in 2005, co-sponsored a bill to criminalize flag-burning. Here’s the text of that bill, which you can go read yourself.

Here’s why the comparison between Trump’s suggestion and Clinton’s bill is, legally as well as morally speaking, bullshit.

1. The bill Clinton proposed (which I disagree with, by the way) only would have restricted flag-burning in a fairly narrow range of cases. In particular, the main portion of the bill focused on “incitement,” carefully defined to match only that conduct which the Supreme Court held, in Brandenburg v. Ohio, 395 U.S. 444 (1969), is unprotected by the First Amendment.
2. Incitement is an incredibly narrow exception to the First Amendment, and basically only means situations where someone is trying to, and likely to succeed at, provoking immediate violence. Almost no cases fall under it. The same is true of the other categories the bill included, such as threats/attempts to intimidate, and burning flags belonging to other people (stealing the flag, then burning it).
3. In particular, ordinary political protest would not be covered under the law Clinton proposed. Someone would be perfectly free under it to protest a law, or the election of a tyrannical monster like Donald Trump, by burning all the flags they wanted, as long as they bought the flags they wanted to burn first, and so long as it wasn’t being done in order to threaten or provoke violence.
4. Clinton’s proposed law was also limited only to conduct that was already illegal otherwise: inciting riots, making terroristic threats, and stealing people’s property and burning it are already crimes. She just proposed enhancing the penalty when someone did those crimes with a flag.
5. Most importantly of all, the bill Clinton proposed did not propose stripping flag-burners of citizenship.
6. Stripping citizenship is blatantly unconstitutional. See Afroyim v. Rusk, 387 U.S. 253 (1967), where Justice Black, writing for the court, said:

In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship. Our Constitution governs us and we must never forget that our Constitution limits the Government to those powers specifically granted or those that are necessary and proper to carry out the specifically granted ones. The Constitution, of course, grants Congress no express power to strip people of their citizenship, whether, in the exercise of the implied power to regulate foreign affairs or in the exercise of any specifically granted power. And even before the adoption of the Fourteenth Amendment, views were expressed in Congress and by this Court that, under the Constitution the Government was granted no power, even under its express power to pass a uniform rule of naturalization, to determine what conduct should and should not result in the loss of citizenship. On three occasions, in 1794, 1797, and 1818, Congress considered and rejected proposals to enact laws which would describe certain conduct as resulting in expatriation.

4. Finally, stripping someone of citizenship is a profoundly draconian punishment and an egregious violation of human rights, much worse than imprisonment.

See the Supreme Court’s discussion in Trop v. Dulles, 239 F.2d 527 (1958) (plurality of the Court holds that stripping someone of citizenship is unconstitutional cruel and unusual punishment under the 8th Amendment even for the crime of military desertion — which is obviously much worse than flag burning). Here’s what Chief Justice Warren said there:

There may be involved no physical mistreatment, no primitive torture. There is, instead, the total destruction of the individual’s status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights and, presumably, as long as he remained in this country, he would enjoy the limited rights of an alien, no country need do so, because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.

This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.

The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime. It is true that several countries prescribe expatriation in the event that their nationals engage in conduct in derogation of native allegiance. Even statutes of this sort are generally applicable primarily to naturalized citizens. But use of denationalization as punishment for crime is an entirely different matter. The United Nations’ survey of the nationality laws of 84 nations of the world reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion. In this country, the Eighth Amendment forbids this to be done.

So yes, what Trump proposed was vastly more evil and terrifying than what Clinton proposed.

Clinton merely proposed taking some acts that are already crimes and making the penalty a more severe for people who commit them while burning flags.

Trump proposed making political protestors into stateless persons if they express their protest by burning a flag.