is wrapped in irony.
in 1777 the Continental Congress adopted the American Flag. On that same day the United States Army, which would fight under that flag, was official established.
In 1916 Woodrow Wilson issued a proclamation establishing Flag Day on this day, something affirmed by Act of Congress in 1949.
The irony comes from perhaps the most important Supreme Court decision most Americans do not know, issued this date in 1943.
That case involved the Pledge of Allegiance.
It is West Virginia State Bd. of Educ. v. Barnette - 319 U.S. 624 (1943)
The opinion of the Court, by Robert Jackson, may be as well written as any opinion ever. Sandra Day O'Connor once said in response to a question I asked her at a public forum where she was receiving an award and where my question had mentioned this case, that Jackson was probably the finest writer of opinions ever to sit on the Court (as she also noted he had not gone to law school but read for the law and wondered if there was a connection.
The irony is this. The Barnette case, decided 6-3, reversed the 1940 8-1 Gobitis decision, and made clear that school children could not be compelled to participate in the ceremonies around the Pledge of Allegiance.
Please keep reading as I offer a bit more - of the history of the disputes over the Pledge, and some important selections from Jackson's opinion.
First, it is worth remembering that the Pledge was originally written as a one-time exercise for the 1892 Columbian Exposition in Chicago. The author was Baptist minister Francis Bellamy, who also was a socialist, and the original text read I pledge allegiance to my Flag and the Republic for which it stands, one nation indivisible, with liberty and justice for all.. By the time the Supreme Court addressed the issue of the Pledge of Allegiance in 1940, the text was as we now know it minus the words "under God" added in the 1950s at the urging of the Knights of Columbus to distinguish the US from the godless communist USSR.
Billy Gobitas (note the correct spelling of his name) was a Jehovah's Witness, as were the two girls from the Barnette family. In 1940 the Supreme Court had ruled 8-1 in an opinion written by Felix Frankfurter that students who refused to say the Pledge could be expelled. In Minersville School District v. Gobitis, 310 U.S. 586 (1940), the Court ruled on the issue of whether students could at penalty of expulsion be required to stand and recite the Pledge. The issue had been brewing for about half a decade, with the church leadership of the Witnesses urging people to stand up for their rights - in their belief system, pledging to the flag was a violation of the biblical commandment against graven images. Billy Gobitas was a convert to the Witnesses who admired those who had stood up. When he followed their example, his family suffered as people in the community boycotted their store. Nevertheless his family back him, and in trial in US District Court the judge ruled the requirement to participate violated the free exercise clause of the First Amendment, a decision upheld by a unanimous 3-judge panel of the 3rd Circuit only two weeks later.
The school board decided to appeal the case to the Supreme Court, which is why the Board is listed first as the appellant.
It is worth noting that the recitation began with the hand over the heart, then extended straight forward palm up in the direction of the flag on the words 'to the flag.' Many groups objected to this practice.
In the opinion, written by Felix Frankfurter, and quoting from the Wikipedia article on the case,
he relied primarily on the "secular regulation" rule, which weighs the secular purpose of a nonreligious government regulation against the religious practice it makes illegal or otherwise burdens the exercise of religion. He identified the Pennsylvania flag-salute requirement as an intrinsically secular policy enacted to encourage patriotism among school children.
He did not find the requirement of the Pledge as being aimed at a particular religious belief and
wrote that the recitation of a pledge advanced the cause of patriotism in the United States. He said the country's foundation as a free society depends upon building sentimental ties.
The flag, the Court found, was an important symbol of national unity and could be a part of legislative initiatives designed "to promote in the minds of children who attend the common schools an attachment to the institutions of their country."
The only dissenter, Harlan Stone, noted
The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them...The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say...
Unfortunately, as we know all too well from our own time, we have our share of yahoos and bigots who will use any excuse to go after those they view as "unAmerican" in any fashion. Let me quote the first paragraph of the Wiki article on the results of the opinion, telling you to note carefully the first location mentioned:
On June 9, a mob of 2,500 burned the Kingdom Hall in Kennebunkport, Maine. On June 16, Litchfield, Illinois police jailed all of that town's sixty Witnesses, ostensibly protecting them from their neighbors. On June 18, townspeople in Rawlins, Wyoming brutally beat five Witnesses; on June 22, the people of Parco, Wyoming tarred and feathered another.
As an aside, when George H. W. Bush in 1988 made an issue that Michael Dukakis's Massachusetts did not require the recitation of the Pledge in school, I wondered why the Democrat's campaign did not use that piece of history in response.
West Virginia expelled the Barnette girls for not reciting the Pledge. Quoting from the Wikipedia article on their case,
Failure to comply was considered "insubordination" and dealt with by expulsion. Readmission was denied by statute until the student complied. This expulsion, in turn, automatically exposed the child and their parents to criminal prosecution; the expelled child was considered "unlawfully absent" and could be proceeded against as a delinquent, and their parents or guardians could be fined as much as $50 and jailed up to thirty days. On the advice of an early attorney, the Barnettes had avoided the further complications by having their expelled girls return to school each day, though the school would send them home
By now, Harlan Stone, who had dissented in Gobitis, was Chief Justice. The Court's membership was slightly altered with the addition of James Byrne, Robert Jackson, and Wiley Rutledge. The 6-3 majority included the Chief Justice, all 3 new justices, and two who changed their minds - Hugo Black and William O. Douglas, who beside signing the opinion of the Court, written by Jackson, also offered concurrences explaining their change of mind in only 3 years.
Before I get to Jackson's opinion, the problem for Witnesses continues even today. Quoting again from the Wikipedia article,
At 2006 proceedings cosponsored by the Justice Robert H. Jackson Center and the Supreme Court Historical Society, Supreme Court law clerks from that Court were on a panel with the two eponymous Barnettes. Just as she and her sister had in 1942, Gathie Barnette Edmonds noted that her own son was also sent to the principal's office for not saluting the flag.
If you have never done so, you ought to read ALL of Jackson's magnificent opinion, which, along with the concurrences and Frankfurter's dissent, can be read
here.
Here are just a few key selections:
The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual. The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce [p631] attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude.
THus we have presented plainly the notion that exercise of one's rights when they do not interfere with the rights of others then becomes a question of the conflict between authority and the rights of an individual.
There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short-cut from mind to mind. Causes and nations, political parties, lodges, and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas, just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.
This puts the notion of flag salutes in a broader context.
It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony, or whether it will be acceptable if they simulate assent by words without belief, and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence.... To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.
Note the notion of forced speech. While the Barnettes had argued on the basis of freedom of religion, Jackson is responding on the far broader grounds of freedom of speech. As he writes a bit later,
Nor does the issue, as we see it, turn on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a compulsory rite to infringe constitutional liberty of the individual. It is not necessary to inquire whether nonconformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty.
I am now skipping down toward the end of the decision, from which i will share a great deal, because this is the real power of Jackson's analysis.
This section begins with this brief paragraph:
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.
To examine that problem, Jackson then offers this extended paragraph that explores the history of such an approach:
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.
Note the power of those final two sentences:
Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
The next paragraph to my mind is something very relevant to our current discussions over Fourth Amendment issues, that is, Jackson is attempting to lay down a broad principle that extends beyond the issues of the case he was deciding:
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.
Although he is writing specifically about the 1st Amendment, note this sentence which does speak more broadly;
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.
The next paragraph now focuses on the case at hand. I will offer the entire paragraph, and then return to the final three sentences:
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 [p642] 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.
But freedom to differ is not limited to things that do not matter much. - this is a key notion of what freedom is, as Jackson reinforces with the last of these final three sentences:
The test of its substance is the right to differ as to things that touch the heart of the existing order.
The paragraph that follows, before announcing the decision to reverse Gobitis, are perhaps as important as any words ever offered in any Supreme Court opinion. I not only believe that we should require this case to be taught to all students, but one could argue that these words carry the same power as do those in Lincoln's brief but powerful Gettysburg Address, and would be well worth memorizing were we still to require memorization:
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.
When I hear politicians bloviate about this being a Christian or Judeo-Christian nation, when they denigrate their political opponents, when they accuse people of being unpatriotic, when as a result they attempt to insist upon forced conformity, I want to respond with these words by Jackson, which are as clear a statement of the diversity this country SHOULD embrace, a diversity that is protected constitutionally.
June 14 is an important date in our history, for many reasons.
To my mind, the greatest of those is this decision, this powerful opinion by Jackson.
And if one takes nothing else away from this, remember these words, written when the US was already well engaged in the conflict of World War II:
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.