Re-upping from 9/24/2017–because Flag Day is not my favorite holiday, though the Supreme Court decision I described is one of that institution’s finest moments.
When at a ball game that is preceded by the National Anthem, often performed by someone or some group evidently determined to hold the field for as long as possible, a goal abetted by certain musical characteristics of our anthem, the crowd always cheers as the last notes are played or sung. I've never been sure whether the cheers should be attributed to patriotism or to relief that, the empty ritual having been performed, or over performed, the ball game can now finally begin. I incline toward the latter view, but maybe that's a case of projection.
Anyway, my partriotism, what there is of it, is more apt to get a lift from contemplating the history of the Supreme Court than from flag-waving and anthem-singing at sports venues. For example, in January of 1942, just a month after the Japanese attack on Pearl Harbor, the state of West Virginia adopted a resolution requiring school children to salute the flag as "a regular part of the program of activities in the public schools." Moreover, all teachers and students were compelled by the resolution "to participate in the salute honoring the Nation represented by the flag." The details of the prescribed salute were described in detail and must have been intended to distinguish it from the Nazi salute of der Fuhrer. The penalty for nonconformance was expulsion. While expelled, the student was treated as "unlawfully absent" and was to be proceeded against as a delinquent. Parents and guardians were subject to prosecution and, on conviction, had to pay a fine or be jailed for a term not to exceed thirty days. To be readmitted after expulsion, a student had to participate in the salute.
A family of Jehovah's Witnesses, last name of Barnette, instructed their children not to salute the flag at the Slip Hill Grade School near Charleston, West Virginia. When the children were expelled, the Barnettes brought suit, and a three-judge panel of the United States District Court in West Virginia ruled in their favor. The West Virginia Board of Education appealed to the Supreme Court, which heard the case on March 11, 1943, while American servicemen were being killed daily in both theatres of the war. Nevertheless the Supreme Court affirmed the decision of the district court. The majority opinion was written by Associate Justice Robert Jackson, and I'll set down the concluding paragraphs:
National unity, as an end which officials may foster by persuasion and example, is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement.
Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.
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.
The decision of this Court in Minersville School District v. Gobitis, and the holdings of those few per curiam decisions which preceded and foreshadowed it, are overruled, and the judgment enjoining enforcement of the West Virginia Regulation is
Affirmed
What some of us find so striking about this, and even thrilling, is that the Barnettes were likely hoping to carve out for themselves an exclusion from the state regulation on narrow religious grounds. Justice Jackson had no time for that. He and the other five justices in the majority--it was a 6-3 decision--held that the regulation violated the rights of all citizens. That is, West Virginia was "enjoined" from compelling the Barnette children to salute the flag, not because they were Jehovah's Witnesses, but because they were Americans.
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