Barnette and the Flag Burning Amendment

Yesterday was the 63rd anniversary of one of the most important Supreme Court rulings in our history, West Virginia State Board of Education v Barnette. The case dealt with the question of whether the government could force students to salute the flag and recite the pledge of allegiance, and it was brought by a family of Jehovah's Witnesses who believed that to do so would be blasphemy because only God is deserving of such a vow. Justice Robert Jackson's opinion is incredibly powerful, one of the most lucid and bold statements on liberty ever written.

The historical significance can't be fully understood without understanding the historical context in which this case took place. This was 1943, at the height of our involvement in WW2, and only three years earlier, the Supreme Court had upheld a similar law in Pennsylvania and affirmed the government's authority to compel students to repeat the pledge and salute the flag even if it violated their most cherished beliefs. The timing could not have been worse for such a case. But Justice Jackson led the court in reversing that decision and restoring a vital limitation on the government's authority to compel our assent.

The entire ruling is worth reading; indeed, I would argue that it should be mandatory reading in any American history class. Below the fold, I'll paste my favorite passage so you can see that Jackson's eloquent defense of freedom of conscience would fit in perfectly with many passages written by Jefferson or Madison. And also because it provides a perfect lead in to discuss a current controversy:

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 b ecause 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.

Can I get an amen? I should mention that there are three great ironies that should be kept in mind by those hyper-patriots who would seek a return to the days of loyalty oaths:

Irony #1: 6 years after this ruling was handed down, Harry Truman designated June 14th as an official American holiday - Flag Day.

Irony #2: In those days, they didn't salute the flag the way one would today (hand over heart or, for someone in the military, with a hand to the forehead). The West Virginia law prescribed the precise manner of that salute, declaring that it must be "the 'stiff-arm' salute, the saluter to keep the right hand raised with palm turned up." If you're having difficulty picturing how that would look, just take a peek at any old newsreel footage of the rallies of the Third Reich. Or take a look at this picture:

i-1920111d295de91b1d7702b27c43ee0d-1892_pledge_of_allegiance2.jpg

Irony #3: One of the very first things that Hitler did upon seizing power in Germany was ban the burning of the German flag; the punishment was imprisonment. In China, where we all watched the student protestors at Tianenman Square burn the Chinese flag, their actions result in a minimum of 3 years in prison. The other two nations that punish those who burn their flag at the moment: Cuba and Iran. And what was Senate Majority Leader Bill Frist doing on the 63rd anniversary of the Barnette ruling? Holding a press conference to announce that he's bringing a proposed constitutional amendment to ban flag burning up for a vote in the Senate. Those who forget history, as they say...

Update: Oops, I forgot one more irony: the pledge of allegiance was written by a socialist (but not a godless one, he was also a Baptist minister). And on June 14, 1954, Eisenhower signed into law the bill that added the words "under God" to the pledge of allegiance - primarily as a means of distinguishing us from the godless commies we were then locked in a cold war with.

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Ed - Thank you for bringing Justice Jackson's opinion to light. As you said it is well written and thought out, and very interesting. In a perfect world, someone would forward this to Sen Frist, AND he would actually read it and realize what an idiot he has been and take immediate steps to correct some of the actual problems in the US, rather than knee-jerk talking points for the mid-term elections.

So in the span of a few months, our American leadership has proposed building a wall between our country and our neighbor like the Berlin Wall, joining Soviet Russia on immigration control, and now we want to join the ranks of Iran, Cuba, and China in outlawing flag burning.

Lovely.

They say you can tell the character of a person by the quality of the company he keeps. Let's hope the same rule doesn't apply to nations.

I find it amusing when people claim that the phrase "under God," is:

1) Traditional
2) Not religious

When I ask them what they mean by traditional, I inevitably get, "it's always been part of the pledge, it should stay."

When I inform them that, for the first 60+/- years the pledge didn't include that phrase, they then fall back on element 2.

For that one, I inform them that the piece of legislature was sponsored by the Knights of Columbus, a Catholic organization. They then revert to "it's a tradition," apparently forgetting the earlier discussion of point 1.

It's a tradition is such a BS safety net. It was a tradition to treat minorities like second class citizens, deny them their civic and legal rights. It was a tradition for women to be denied the right to vote and before that their right to manage their own property. It was a tradition to own people, to slaughter them for their land; to rape women and murder children while you did so.

Lots of traditions have been shown to be wrong in hindsight, IMO a mandatory (since 9/11 most states have passed legislation requiring school districts to recite the pledge) pledge of alliegance to a free country is wrong.

By dogmeatIB (not verified) on 15 Jun 2006 #permalink

You got my "Amen:" I'm finding this whole subject kind of creepy in the sense that the points you make should be so obvious to any rational being, and yet apparently aren't.

Ed:The West Virginia law prescribed the precise manner of that salute, declaring that it must be "the 'stiff-arm' salute, the saluter to keep the right hand raised with palm turned up." If you're having difficulty picturing how that would look, just take a peek at any old newsreel footage of the rallies of the Third Reich. Or take a look at this picture...

Am I the only one who had an almost visceral reaction of disgust upon see that picture?

Jeff: So in the span of a few months, our American leadership has proposed building a wall between our country and our neighbor like the Berlin Wall, joining Soviet Russia on immigration control...Lovely.

Yes a lovely example of nonsense. The Berlin wall was created by an oppressive government to keep its own people from escaping. Fencing along our border is intended to slow down the invasion of foreign nationals trying to enter our country illegally.

Just a tiny bit different I'd say.

Now if the government of Mexico were building walls or fences on its side of the border to stop their people from coming here you would then have a much more valid comparison to make. But they are doing the opposite and encouraging their poor to flee across the border, using the U.S. as a way to get rid of them and forestall needed changes (revolution) in their policies.

By Troy Britain (not verified) on 15 Jun 2006 #permalink

Troy Britain said:

Yes a lovely example of nonsense. The Berlin wall was created by an oppressive government to keep its own people from escaping. Fencing along our border is intended to slow down the invasion of foreign nationals trying to enter our country illegally.

Just a tiny bit different I'd say.

A wall's a wall, Troy. There are fundamental differences with the Berlin Wall, yes, but there are fundamental similarities as well. Walls are the products of closed societies. America has historically been an open society -- open to ideas, open to immigration, open to change. A wall across our border would be the antithesis of that.

And taken in conjunction with Constitutional amendments banning a kind of marriage and banning flag burning, I think it's an appropriate analogy to make. Not perfect -- no analogy is -- but appropriate. I don't want to live in a walled country. I want to be strong enough not to need walls, like the America I grew up in and studied in history books.

Wow, hard to believe that the Supreme Court once had Justices more interested in freedom than serving various corporate or political masters. We should treausre that moment in history, because there have been few like it and such may never be seen again.

Justices Jackson, both Harlans, Black, Breenan, Douglas, and Earl Warren: How many others have had expanding the freedom of ordinary Americans as their primary philosophy? Today we have Kennedy with his balancing tests and Souter's quiet support for (but not championing of) various freedoms, but nobody really in favor of FREEDOM itself.

As for the Flag Amendment, Mark Steyn recently quipped that the act of burning a flag requires a flag worthy of desecration. Until the cartoons, nobody thought it worth their while to find a Danish flag, much less burn it. The fact that assorted whackos burn a flag from time to time is a sign of strength, not weakness.

An elderly veteran once told me I should support the Amendment because it was what "He and his buddies had faught and died for." I hope not. Just as my fundamental rights do not exist because they are listed on a piece of paper called the Constitution, we should serve a nation, an idea, an ideal -- freedom. Never a piece of cloth.

A wall's a wall, Troy. There are fundamental differences with the Berlin Wall, yes, but there are fundamental similarities as well.

So, can we assume from this that you sleep outside, Mr. Herbert, to avoid walls? Do you perhaps knock down picket or chain-link fences because they, too, are walls like the one that divided Germany?

A wall's a wall, Troy.

Are you serious with this? "A wall's a wall"? The walls around a gulag imprisoning political prisoners, the walls around a penitentiary holding murderers and rapists, and the walls of your house or apartment that keep strangers from wandering through are all the same? Really?

There are fundamental differences with the Berlin Wall, yes, but there are fundamental similarities as well.

Yes a fence or wall is a physical structure intended to keep people from moving from point A to point B. There the similarities end.

Walls are the products of closed societies.

What kind of touchy feely hippy bullshit is this? Wait I'm hearing a song in my head...

...And the sign said anybody caught trespassin' would be shot on sight, So I jumped on the fence and-a yelled at the house, "Hey! What gives you the right?"

"To put up a fence to keep me out or to keep Mother Nature in" "If God was here he'd tell you to your face, Man, you're some kinda sinner"

Sign, sign, everywhere a sign Blockin' out the scenery, breakin' my mind Do this, don't do that, can't you read the sign?

Ah, it's 1971 all over again. Where are my sandals and beads? So are your views on property rights similar to your views on national sovereignty? You won't mind then if some friends and I crash at your place for a decade or five right? Don't worry we'll let ourselves in.

America has historically been an open society -- open to ideas, open to immigration, open to change.

Being an open society doesn't mean totally open borders. Immigration is fine (legal immigration) and change is fine. But massive uncontrolled illegal immigration and uncontrolled, unthinking, change is not.

A wall across our border would be the antithesis of that.

Only if there are no gates or doors in the wall.

And taken in conjunction with Constitutional amendments banning a kind of marriage and banning flag burning, I think it's an appropriate analogy to make. Not perfect -- no analogy is -- but appropriate.

Both those things are ridiculous and have no underlying philosophical connection in my mind to the question of having controlled borders. Yes all three may be championed largely by "conservatives" but I don't think the "platforms" (if you will) of either "conservatives" or "liberals" are internally consistent.

I don't want to live in a walled country. I want to be strong enough not to need walls, like the America I grew up in and studied in history books.

There are the ideas in your head and then there is reality. In reality we have millions of poor uneducated people (some of whom have no interest in assimilating), illegally streaming across our southern border every year, and that is not something that this country will be able to survive if it goes on indefinitely (especially in an ever expanding welfare state).

By Troy Britain (not verified) on 15 Jun 2006 #permalink

Ever expanding welfare state? Unless you're referring to corporate welfare, you must be joking.

The point that I believe Jeff was making is that a wall across the southern United States isn't that different from the wall around Berlin, or the "Iron Curtain," or the Great Wall of China... or Hadrian's wall for that matter.

While your point that the Berlin wall kept people in, you forget the fact that it (and the Iron Curtain) were also designed to keep ideology out. In each of these historical instances the wall were designed to keep something the government in question didn't like. Whether it was ideology, Mongol hordes, or Celtic hordes, each of these walls was intended to keep the bogeyman out. Also each of them failed.

A wall across the United States will fail as well. Why? Because the majority of illegal aliens don't cross the border on foot, etc., that's a common misconception. The majority of illegal immigrants arrive in the country legally (often by plane) and then stay beyond their legal time limit.

Also the idea that illegal immigrants will destroy our economy is laughable. Point in fact you remove the illegal workforce from the Southwest and many of these states would virtually collapse. You want to know what a joke immigration policy is? Go to any worksite in southern Arizona. Shouldn't be hard to find one, Pinal county is the fastest growing county in the country (or at least it was last year) and Pima county isn't far behind. Go to a subdivision, you'll recognize it, dozens of houses going up so fast you get a little dizzy from watching it. If you can go to just one of those sites and don't find at least one illegal working ... I'll eat my hat.

By dogmeatIB (not verified) on 15 Jun 2006 #permalink

dogmeatIB: Ever expanding welfare state? Unless you're referring to corporate welfare, you must be joking.

That too. Hell, our current immigration policies are a form of corporate welfare.

While your point that the Berlin wall kept people in, you forget the fact that it (and the Iron Curtain) were also designed to keep ideology out.

What does that have to do with anything? Who is talking about any ideologies?

In each of these historical instances the wall were designed to keep something the government in question didn't like. Whether it was ideology, Mongol hordes, or Celtic hordes, each of these walls was intended to keep the bogeyman out. Also each of them failed.

I'm not worried about the bogeyman; I'm worried about (at least) 3 million poor uneducated people a year coming into our country illegally. There isn't anything imaginary about that.

A wall across the United States will fail as well.

That depends. It depends on what your definition of success is and whether or not you do nothing besides build fences. No one expects perfection and fences are only part of the solution. If the government would simply enforce the laws against employing illegal aliens then much of the problem would fix itself.

Why? Because the majority of illegal aliens don't cross the border on foot, etc., that's a common misconception. The majority of illegal immigrants arrive in the country legally (often by plane) and then stay beyond their legal time limit.

I'd like to see the documentation on that but it is certainly a problem as well (another the government does nothing about).

Also the idea that illegal immigrants will destroy our economy is laughable.

Yes depressed wages for lower income citizens (like myself) and legal residents, closing emergency rooms, overcrowded schools, overcrowded highways, and something akin to slavery (that many illegal aliens live under) are hilarious. I just can't stop laughing. Obviously everything is just fine and dandy.

Point in fact you remove the illegal workforce from the Southwest and many of these states would virtually collapse.

Not buying it. We might have to pay more for some things but there wouldn't be any collapsing going on. I think this BS about illegal aliens being essential to our economy is a myth fostered by the corporate interests that benefit most from the status quo. And if I hear one more rich person complain about how they'd have to pay more for a nanny or gardener I'm going to puke. Watch your own damn kids and mow your own damn lawns.

You want to know what a joke immigration policy is? Go to any worksite in southern Arizona. Shouldn't be hard to find one, Pinal county is the fastest growing county in the country (or at least it was last year) and Pima county isn't far behind. Go to a subdivision, you'll recognize it, dozens of houses going up so fast you get a little dizzy from watching it. If you can go to just one of those sites and don't find at least one illegal working ... I'll eat my hat.

Construction, would be one of the jobs Americans won't do? I want one of those $50 an hour agricultural jobs that McCain was blathering about a couple weeks ago. I'm sure it's backbreaking work but I could work half a year and make a lot more than I do now.

By Troy Britain (not verified) on 15 Jun 2006 #permalink

Troy,

You misunderstand my point regarding the purpose of a wall. You see a wall solely as a utiltarian construction and dismiss it as a psychological construct as well as physical one. That is also what Jeff may have meant as well. You see a wall as a wall, concrete and masonry (or folded steel, etc.), we're talking about a wall as a symbolic effort above and beyond the physical structure. The Soviets built the wall in Berlin not only to stop emigration, they did so to stop the "invasion" of ideas, IE ideology.

Overall, personally, I consider it less expensive, and more likely to succeed, if we emphasized economic growth programs in Mexico rather than build a wall. Eliminate the "push" factors rather than block the "pull" factors.

Honestly sorry, I can't confirm the source on that illegal immigrant statement. One of my students brought that in. I did verify it at the time, but I must have left the article and information at work. I certainly wont ask you to accept the statement on my word alone, if I do track down the source, I'll update.

My problem with the claims regarding illegal immigrants is quite simple. They all seem to ignore the amount of money illegals pour into the economy. They buy food, rent apartments, etc. Also, sorry, the jobs that the construction sites, and the $50 agricultural jobs are pure BS. They are $5 clean up shyte on the job site and pick crops. If they were making $50 to pick your lettuce, it'd cost $5 a head.

By dogmeatIB (not verified) on 15 Jun 2006 #permalink

Former Jehovah's Witness speaks out.

I was born into the Jehovah's Witnesses in 1957.I was the good little JW boy who got beaten up in the school yard for not saluting the flag and remaining seated for the Star Spangled Banner as demanded by my Jehovah's Witnesses leaders.

This was the 'better dead than red' era of the 1960's, I suffered much,only to learn that the Watchtower corporation is just another man-made club of senile old men in their ivory tower who impose their dogmas on children.

I now proudly fly the Flag at my home.
----
God bless America, Danny Haszard Bangor Maine USA www.dannyhaszard.com

Danny-

And you have every right to fly that flag at home, and to salute and pledge allegiance to any flag you see. And of course the religion of the JWs is absurd. But that is not the point of this post at all. The point is that just as other people have an equal right not to fly the flag, or salute it, or pledge allegiance to it. You weren't beaten up because your religion was absurd; you were beaten up because too many other people have no respect for liberty.

Thanks for your comments. The "Nazi salute" is more accurately called the "American salute" as it was created and popularized by national socialists in the USA where its use was mandated by law in government schools for three decades before, and through, the creation of the National Socialist German Workers' Party. It was the early gesture of the Pledge of Allegiance.
http://rexcurry.net/book1a1contents-pledge.html

The original pledge was anti libertarian and began with a military salute that then stretched out toward the flag. In actual use, the second part of the gesture was performed with a straight arm and palm down by children casually performing the forced ritual chanting. Due to the way that both gestures were used sequentially in the pledge, the military salute led to the Nazi salute. The Nazi salute is an extended military salute via the USA's pledge.

The Pledge's early salute caused quite a Fuhrer/furor. The dogma behind the Pledge was the same dogma that led to the socialist Wholecaust (of which the Holocaust was a part): 62 million slaughtered under the Union of Soviet Socialist Republics; 49 million under the Peoples' Republic of China; 21 million under the National Socialist German Workers' Party. It was the worst slaughter of humanity ever.

Many people do not know that the term "Nazi" means "National Socialist German Workers' Party" and that members of the horrid group did not call themselves Nazis, but called themselves socialists.

The USA originated Nazism, Nazi salutes, flag fetishism, robotic group-chanting to flags, and the modern swastika symbol as S symbolism for "socialism," all shown in the research of the noted historian Dr. Rex Curry. The bizarre acts in the USA began as early as 1875 and continued through the creation of the National Socialist German Workers' Party (German Nazis or NSGWP). The NSGWP had clear roots in National Socialism promoted by socialists in the USA. Amazing graphic images that prove the point are at
http://rexcurry.net/theosophy-madame-blavatsky-theosophical-society.html

The USA is still the worst example in the world of bizarre laws that require robotic chanting to a national flag in government schools (socialist schools) every day for 12 years. It has changed generations of Americans from libertarians to authoritarians. The government bamboozled individuals into believing that robotic group-chanting in government schools is a beautiful expression of freedom. Frightening photographs are at http://rexcurry.net/pledge2.html

Good information. Thanks.