It's worth spending time with Justice Robert Jackson's 1943 majority opinion holding that the First Amendment bars compulsory flag salutes and compelled recitations of the Pledge of Allegiance.
Justice Jackson's 1943 opinion is timeless. Thank you for highlighting it and some of its most compelling language. But as you highlighted, the most profound and important principles that are relevant here are not in the First Amendment (or in Justice Jackson's opinion about the First Amendment), but in Article VI: Our Constitution is "the supreme law of the land" and all legislators and "all executive and judicial Officers, both of the United States and of [all] States" are "bound" to "support" our "Constitution." Moreover, "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Trump is essentially imposing a religious test, requiring the equivalent of worshiping a golden calf. Search on-line for "golden image of Trump." You might be surprised.
As Congress (representing the People) emphasized in a federal statute (5 U.S.C. 3331) every civilian federal employee must every day in every way "bear true faith and allegiance to" our Constitution, including by "support[ing] and defend[ing] the Constitution of the United States against all enemies, foreign and domestic." Every federal employee is bound by that same duty (those who serve in our Armed Forces are subject to different, but similar statutes). Any purported public servant who demands that other public servants serve him and attack and undermine our Constitution is an enemy of our Constitution.
I recall first reading Barnette as a freshman in undergraduate school at Colgate University. That was over 50 years ago. Thanks for the reminder of why Justice Jackson’s words were so prophetic.
Twenty years after Barnette, a unanimous SCOTUS issued an even more directly relevant opinion (by Justice Brennan) that, in multiple crucial respects, built far more powerfully and clearly on principles hinted at by Justice Jackson in Barnette. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), SCOTUS addressed a federal statute that a president (John Adams) and Congress conspired to contrive to attack and undermine rights and freedoms that were expressly secured by the First Amendment.
The Sedition Act of 1798 was effective, if at all, for only a couple years before it expired. The infamous part (Section 2) criminalized criticism of federal officials (including by their political opponents and the general public). In Sullivan, SCOTUS accentuated that "the Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison."
Subsequently, "Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines" because, as President Jefferson stated, "that law" was "a nullity, as absolute and as palpable as if Congress [and President Adams] had ordered us to fall down and worship a golden image."
SCOTUS powerfully re-emphasized the vital re-emphasis by James Madison and the Virginia legislature of the most fundamental and crucial principles in our Constitution: Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways (e.g., the power of the people vs. the power of public servants; state power vs. federal power; legislative power vs. executive power vs. judicial power) precisely because “of the people’s” extreme “distrust” of people with “power” at “all levels.” In our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
As you highlighted, Justice Jackson hinted at those same principles in Barnette:
"There is no mysticism in the American concept of the State or of the nature or origin of its authority. We [the sovereign people] set up government [under our Constitution] by consent of the governed . . . . [The primary point of voting to choose public servants and our other speech regarding our self-government is that, in general, all governmental authority in America] is to be controlled by public opinion, not public opinion by authority."
I wrote about Barnette and similar cases in my book on sports and social justice which had anthem protests as a recurring thread that ran throughout. I fear that this, and many other precedents, are about to be revisited and shattered. It'll be fun when people start getting arrested not just for not standing for the Anthem, but for not standing the right way.
Sadly, you make a very fair point. That's one reason it's important to for Americans to re-learn the truth about the source and the meaning of the rights and freedoms on which the First Amendment merely touched.
First Amendment rights and freedoms exist because of the nature of our Constitution--because of the sovereignty of the people over all public servants--not because of the mere First Amendment or because of any judge's statements about the First Amendment. The crucial, fundamental truth emphasized by the First and Tenth Amendments and the Necessary and Proper clause of Article I is that We the People never delegated to any federal representative any power to dictate to us how to speak about our own self-government except to permit regulation of time, place and manner in a way that government proves is both necessary and proper to the execution of powers that we did delegate to our representatives.
I first came across Barnette as a research assistant in my second year of law school in the early 90s. My professor was obsessed at the time with the idea that courts should take seriously the idea that they can get things wrong. I had not read this full passage from Jackson's opinion since then, and am grateful to you for quoting it at length.
I had also forgotten, or did not realize, that Justice O'Connor's famous "we avoid that end by avoiding these beginnings" remark was a reference to Barnette.
Speaking of judges taking seriously the idea that they can get things wrong, it would be interesting to know what your professor thinks of a common peculiar practice of judges that flies in the face of Barnette. Judges routinely have some court staff member order people to stand when judges enter the courtroom. Does it make any sense for a judge to think that people can be compelled (or pressured) to stand for their black robe when we clearly cannot be compelled to stand even for the red, white and blue even in a federal courthouse? Perhaps considerably more important, what is the point of ordering people to stand for a judge when he or she walks in or out of a courtroom?
If I had to choose one case in the Supreme Court's history that best defines who we are as Americans, it would be West Virginia vs. Barnette. I think of Justice Jackson's holding and eloquent words when I think of American exceptionalism. Without freedom of conscience the Constitution would not have the same meaning. Thank you, professor Vladek, for bringing this case to prominence this week. It should be part of every civics course beginning in elementary school.
Thank you! I always learn so much from you! My mother was a Jehovah’s Witness as a child (she is no longer one) and was the only person in her graduation class to not salute the flag.
A stronger statement of the First Amendment protections is Holmes' dissent in Gitlow v New York. A free speech case this dissent easily covers other First Amendment protections. In his dissent Holmes writes: "If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." Amen and amen.
Some years ago it was suggested (sorry, no reference) that instead of reciting the pledge of allegiance schools should start the day by reciting the preamble to the Constitution. This is not an oath/affirmation, does not have "under God" in it, and requires the speaker to make no commitment to the treatment of the flag or to the country. Does this escape Justice Jackson's censure, or is the issue the compelling of speech?
While I understand and appreciate your concern that we “stay safe out there,” it seems incongruous with your discussion of Barrett. Perhaps we should stay courageous.
Justice Jackson's 1943 opinion is timeless. Thank you for highlighting it and some of its most compelling language. But as you highlighted, the most profound and important principles that are relevant here are not in the First Amendment (or in Justice Jackson's opinion about the First Amendment), but in Article VI: Our Constitution is "the supreme law of the land" and all legislators and "all executive and judicial Officers, both of the United States and of [all] States" are "bound" to "support" our "Constitution." Moreover, "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Trump is essentially imposing a religious test, requiring the equivalent of worshiping a golden calf. Search on-line for "golden image of Trump." You might be surprised.
As Congress (representing the People) emphasized in a federal statute (5 U.S.C. 3331) every civilian federal employee must every day in every way "bear true faith and allegiance to" our Constitution, including by "support[ing] and defend[ing] the Constitution of the United States against all enemies, foreign and domestic." Every federal employee is bound by that same duty (those who serve in our Armed Forces are subject to different, but similar statutes). Any purported public servant who demands that other public servants serve him and attack and undermine our Constitution is an enemy of our Constitution.
I recall first reading Barnette as a freshman in undergraduate school at Colgate University. That was over 50 years ago. Thanks for the reminder of why Justice Jackson’s words were so prophetic.
Twenty years after Barnette, a unanimous SCOTUS issued an even more directly relevant opinion (by Justice Brennan) that, in multiple crucial respects, built far more powerfully and clearly on principles hinted at by Justice Jackson in Barnette. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), SCOTUS addressed a federal statute that a president (John Adams) and Congress conspired to contrive to attack and undermine rights and freedoms that were expressly secured by the First Amendment.
The Sedition Act of 1798 was effective, if at all, for only a couple years before it expired. The infamous part (Section 2) criminalized criticism of federal officials (including by their political opponents and the general public). In Sullivan, SCOTUS accentuated that "the Act was vigorously condemned as unconstitutional in an attack joined in by Jefferson and Madison."
Subsequently, "Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and remitted their fines" because, as President Jefferson stated, "that law" was "a nullity, as absolute and as palpable as if Congress [and President Adams] had ordered us to fall down and worship a golden image."
SCOTUS powerfully re-emphasized the vital re-emphasis by James Madison and the Virginia legislature of the most fundamental and crucial principles in our Constitution: Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways (e.g., the power of the people vs. the power of public servants; state power vs. federal power; legislative power vs. executive power vs. judicial power) precisely because “of the people’s” extreme “distrust” of people with “power” at “all levels.” In our “Republican Government,” the “censorial power is” necessarily generally “in the people over the Government, and not in the Government over the people.”
As you highlighted, Justice Jackson hinted at those same principles in Barnette:
"There is no mysticism in the American concept of the State or of the nature or origin of its authority. We [the sovereign people] set up government [under our Constitution] by consent of the governed . . . . [The primary point of voting to choose public servants and our other speech regarding our self-government is that, in general, all governmental authority in America] is to be controlled by public opinion, not public opinion by authority."
I wrote about Barnette and similar cases in my book on sports and social justice which had anthem protests as a recurring thread that ran throughout. I fear that this, and many other precedents, are about to be revisited and shattered. It'll be fun when people start getting arrested not just for not standing for the Anthem, but for not standing the right way.
Sadly, you make a very fair point. That's one reason it's important to for Americans to re-learn the truth about the source and the meaning of the rights and freedoms on which the First Amendment merely touched.
First Amendment rights and freedoms exist because of the nature of our Constitution--because of the sovereignty of the people over all public servants--not because of the mere First Amendment or because of any judge's statements about the First Amendment. The crucial, fundamental truth emphasized by the First and Tenth Amendments and the Necessary and Proper clause of Article I is that We the People never delegated to any federal representative any power to dictate to us how to speak about our own self-government except to permit regulation of time, place and manner in a way that government proves is both necessary and proper to the execution of powers that we did delegate to our representatives.
I first came across Barnette as a research assistant in my second year of law school in the early 90s. My professor was obsessed at the time with the idea that courts should take seriously the idea that they can get things wrong. I had not read this full passage from Jackson's opinion since then, and am grateful to you for quoting it at length.
I had also forgotten, or did not realize, that Justice O'Connor's famous "we avoid that end by avoiding these beginnings" remark was a reference to Barnette.
Speaking of judges taking seriously the idea that they can get things wrong, it would be interesting to know what your professor thinks of a common peculiar practice of judges that flies in the face of Barnette. Judges routinely have some court staff member order people to stand when judges enter the courtroom. Does it make any sense for a judge to think that people can be compelled (or pressured) to stand for their black robe when we clearly cannot be compelled to stand even for the red, white and blue even in a federal courthouse? Perhaps considerably more important, what is the point of ordering people to stand for a judge when he or she walks in or out of a courtroom?
If I had to choose one case in the Supreme Court's history that best defines who we are as Americans, it would be West Virginia vs. Barnette. I think of Justice Jackson's holding and eloquent words when I think of American exceptionalism. Without freedom of conscience the Constitution would not have the same meaning. Thank you, professor Vladek, for bringing this case to prominence this week. It should be part of every civics course beginning in elementary school.
Thank you! I always learn so much from you! My mother was a Jehovah’s Witness as a child (she is no longer one) and was the only person in her graduation class to not salute the flag.
A stronger statement of the First Amendment protections is Holmes' dissent in Gitlow v New York. A free speech case this dissent easily covers other First Amendment protections. In his dissent Holmes writes: "If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." Amen and amen.
Thank you Mr. Vladeck for the research, photographs, and news.
Saluting and reciting the pledge…then we also have, “In God We Trust” to explore as well!🤔
Some years ago it was suggested (sorry, no reference) that instead of reciting the pledge of allegiance schools should start the day by reciting the preamble to the Constitution. This is not an oath/affirmation, does not have "under God" in it, and requires the speaker to make no commitment to the treatment of the flag or to the country. Does this escape Justice Jackson's censure, or is the issue the compelling of speech?
The wisdom of J Jackson in Barnette (as well as related comments) give me hope.
I would appreciate a deep dive into the Extradition clause , sanctuary laws, and the coming battle between Louisiana and NewYork
Nailed it again on the long read
While I understand and appreciate your concern that we “stay safe out there,” it seems incongruous with your discussion of Barrett. Perhaps we should stay courageous.