Free Speech

"No Official, High or Petty, Can Prescribe What Shall Be Orthodox"

"in politics, nationalism, religion, or other matters of opinion."

|The Volokh Conspiracy |

From Justice Jackson's majority opinion in the case striking down mandatory flag salutes and pledges of allegiance, West Va. Bd of Ed. v. Barnette (1943), decided 77 years ago today:

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.

Thanks to Prof. Glenn Reynolds (InstaPundit) for the reminder that today is the anniversary.

NEXT: The Return of Court-Packing

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  1. The impact of this decision was probably the first time I personally encountered the idea of civil liberties as a child. I remember being in my second grade class in 1972 or so, and standing for the pledge of allegiance. But one girl didn’t say the pledge, and someone asked our teacher why Rachel wasn’t participating. Our teacher told us that Rachel was a Jehovah’s Witness, and that the rules of her religion meant that she didn’t participate in saying the pledge. Our teacher said this fairly matter-of-factly, and there was no issue after that.

    I have always remembered this short discussion during my childhood as something that has shaped my thinking about right vs wrong. Barnette is a powerful statement by the court.

  2. I read “pretty” three times and thought “that’s an odd way to phrase it, shouldn’t it be “tall” rather than “high”. I need to call it a day – and reading glasses.

  3. Odd that it totally escaped Josh.

  4. If there was a poll done of what people think is the best Supreme Court quote, I think this would be a strong contender for the number one spot.

  5. I’ve never understood why anyone would attack the pledge of allegiance on establishment clause grounds when it would be just as creepy without the god reference.

    1. Graven image.

    2. The god reference is actually irrelevant. The original establishment clause challenges to the pledge were brought not by atheists, but by minority religious groups.

      Some of those groups see the pledge as making them worship the flag and the flag then becomes a forbidden idol.

      There are also a couple of groups that see their religion as forbidding the swearing of oaths generally. At least one of these groups has even objected to the oath that witnesses in court are asked to swear.

      1. Who cares? It’s North Korea-style forced speech. (Or at least an attempt thereof.)

        1. “North Korea-style”

          No hyperbole here.

          1. Making children stand up, put their hands on their hearts, face the leader and recite an oath of loyalty is literally what they do in North Korea. That’s not hyperbole at all.

            1. It’s bad, but it’s a loyalty oath to the country not the leader.

        2. I agree with you. It’s a loyalty oath, and loyalty oaths in general ought to be anathema in US politics.

          But you seemed to want to understand why the establishment clause challenges.

          1. But you seemed to want to understand…

            This isn’t the first time that mistaken impression was given, nor will it be the last, I’m sure.

  6. You edited too much — I like the “unanimity of the graveyard” line.

  7. “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”

    Except of course the federal judiciary, who have assumed broad and illegitimate authority over all state and local governments.

  8. Tell that to the governors and mayors dictating when and if religious groups may observe their meetings, down to the details of how to serve communion.

    Welcome to the revolution.

  9. Professor Blackman would probably be better off laying off the birthdays (and accession, resignation, and death dates) of obscure justices and looking at the cases that were decided on a date.

  10. Probably the most eloquent sentence ever written by a Supreme Court Justice (and certainly my favorite). Justice Jackson was the best writer ever to sit on the Supreme Court. His language was compelling even when he was wrong (though he was right much more often than not). And to think he didn’t even graduate from law school (though he did attend for one year). He studied with a local attorney in upstate New York.

  11. Besides standing for the proposition that the government may not compel school children to salute the flag or otherwise compel unanimity of opinion on any topic, this decision also demonstrates the power of justices changing their mind. Both Justices Black and Douglas had voted earlier in Gobitis (an 8-1 decision, compared to the 6-3 decision here) a mere 3 years earlier to uphold mandatory flag salutes.

    Comparing the historical context of Gobitis and Barnette is interesting. Gobitis was decided just before the United States entered the World War II, but at a time when Germany and the Soviet Union were aligned, and Germany was on the verge of conquering France. In contrast, Barnette was decided after the United States had entered the war, but at a time when the Axis was on its heels. One wonders whether the decision in Barnette was facilitated by such success. Perhaps with the prospect of victory more apparent, compelled conformity with the values of national unity seemed less pressing?

    Here is the concluding paragraph in the concurrence by which Black and Douglas officially changed their mind:

    “Neither our domestic tranquillity in peace nor our martial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation. If, as we think, their fears are groundless, time and reason are the proper antidotes for their errors. The ceremonial, when enforced against conscientious objectors, more likely to defeat than to serve its high purpose, is a handy implement for disguised religious persecution. As such, it is inconsistent with our Constitution’s plan and purpose.”

    One can see one major concern demonstrated in this concluding paragraph: namely, that national unity is being used as a trojan horse to conceal the use of the state for religious persecution against a disliked religious minority.

    Regardless of the reasons for the change, had Black and Douglas stood by their earlier opinions, the majority opinion would have been a dissent. So, this case very well illustrates the power of an open mind to constitutional doctrine. Here, neither Black nor Douglas have bought into the concept of judicial infallibility.

    Also, one can see in retrospect how Barnette lays the foundation for Texas v. Johnson, the decision declaring a law outlawing flag burning as unconstitutional, decided 46 years later. It is doubtful that the justices who decided Barnette would have approved of flag burning, even though it seems logically encompassed by the same underlying principle.

    With respect to Johnson, two things are notable. First, 2 out 3 of Reagan’s appointees to the Supreme Court voted in favor, including Scalia and Kennedy, but not O’Connor. Second, if Robert Bork had been confirmed (meaning Kennedy would not have been), I believe Texas v. Johnson would have gone the other way.

    Overall, you have what seems to be a change of mind followed by a coherent chain of reasoning following that from Barnette to Johnson. But it is interesting to think about how historical accident could have changed the outcome in both Barnette and Johnson.

  12. Jackson was certainly naive. Officials do that everyday.

  13. So no more oaths of office? No more oaths in court? That quote, while elegant, is pure dicta.

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