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Friday, June 14, 2013

Barnette at 70

Today is the 70th anniversary of West Virginia State Bd. of Educ. v. Barnette, one of the most significant early free speech cases, particularly rhetorically. When I attend the game at Marlins Park this Sunday and I refuse to stand when they play "God Bless America" during the Seventh Inning Stretch, I have Barnette to thank. Interestingly, this anniversary follows on the heels of a list serv conversation about how teachers and school administrators routinely ignore (or forget about or don't know about) Barnette and force students to participate in flag rituals.

After the jump is a post from John Q. Barrett's (St. John's) The Jackson List (a list serv of regular posts and information about Justice Jackson--Barrett is writing a biography of Jackson). It includes some interesting links, including a discussion with two of the girls involved in the case.

Today, June 14, 2013, marks the 70th anniversary of the decision by the Supreme Court of the United States, embodied in Justice Robert H. Jackson's opinion for Court, in West Virginia State Board of Education v. Barnette.

The Barnette decision, rendered amid the commendable patriotism that characterized the United States home front during that dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to participate in a salute to the American flag and a recitation of the Pledge of Allegiance.

The case was brought on behalf of students who were Jehovah's Witnesses.  In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag.  For that refusal, they were expelled from school.  Expulsion had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.

In Barnette, the Supreme Court held, by a vote of 6-3, that the flag salute requirement violated the children's First Amendment rights, which exist to strengthen "individual freedom of mind in preference to officially disciplined uniformity..."

A leading hero of the Barnette case, in addition to the children, their parents and their lawyer, was the Chief Justice of the United States, Harlan Fiske Stone.  In June 1940, when Stone was an Associate Justice and U.S. involvement in the war in Europe was impending, he had dissented powerfully but alone from the Court's decision to uphold Pennsylvania’s flag salute requirement.  (At that time, Robert Jackson, who was U.S. Attorney General and a Supreme Court nominee, reported to President Roosevelt and the Cabinet on the anti-alien, anti-“Fifth Column” hysteria that was sweeping the country.  Jackson criticized the Supreme Court for joining in that hysteria by ruling against Jehovah's Witnesses in the Pennsylvania case.)

By June 1943, Stone had been appointed Chief Justice; new Associate Justices, including Jackson, had joined the Court; and a majority of the Justices was prepared to revisit and rectify what they saw as the Court’s earlier mistake.

Chief Justice Stone assigned Justice Jackson, the junior justice, to write the Court's opinion in Barnette.  Although all of it bears reading (and regular rereading), some words to consider particularly closely are Jackson's summary paragraphs:

 The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own.  Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.  To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.  We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes.  When they are so harmless to others or to the State as those we deal with here, the price is not too great.  But freedom to differ is not limited to things that do not matter much.  That would be a mere shadow of freedom.  The test of its substance is the right to differ as to things that touch the heart of the existing order.

 If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.  If there are any circumstances which permit an exception, they do not now occur to us.

 We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

In the views of many, Barnette is a high point in U.S. Supreme Court history and one of Jackson’s very finest judicial opinions.

*          *          *

Some links—

·         West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;

·         A 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;

·         A Jackson List post from earlier this year, “Arguing Barnette”—click here; and

·         A 2010 Jackson List post, “The Newest Barnette Sister”—click here.

As always, thank you for your interest and please share this with others.

And in the United States, happy Flag Day!  It was just a coincidence that the Supreme Court decided Barnette on Flag Day in 1943, but in history that coincidence is powerful and instructive.

Posted by Howard Wasserman on June 14, 2013 at 03:21 PM in First Amendment, Howard Wasserman | Permalink

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Comments

This is the case that students should study first in Constitutional Law.

Posted by: Kurt Lash | Jun 15, 2013 7:56:55 AM

Prof. Gerard N. Magliocca cites Barnette as a sort of book-end in his article "Becoming The Bill of Rights."

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2236457

Posted by: Joe | Jun 15, 2013 9:19:57 AM

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