Barnette – One of the Many Decisions Jackson Was Right | News, Sports, Jobs


It is not often that an opinion from the United States Supreme Court overturns a legal precedent that is only a few years old.

One of those opinions, written in 1943 by Judge Robert Jackson, and the precedent it overturned, written in 1940 by Judge Felix Frankfurter, are discussed by this columnist at noon Wednesday May 11 at the Fenton History Center, 67 Washington Street, Jamestown.

The discussion, free and open to the public, will last approximately one hour and is part of the centre’s monthly luncheon series on local history. Attendees are encouraged to bring their own lunch.

The 1940 opinion is Minersville School District v. Gobitis.

The 1943 opinion is West Virginia State Board of Education v. barnette.

Both actions involved public schools requiring students to take the oath of allegiance.

Both actions involved Jehovah’s Witness children who did not want to say the promise.

Both actions involved First Amendment challenges.

In Gobitis, the court dismissed the challenge, 8 to 1. Seven judges joined Frankfurter. Only Judge Harlan Stone dissented.

By 1943, however, three new judges, including Jackson, had joined the court. In Barnette, they – plus Stone, who was then chief justice, plus two who had joined Gobitis’ opinion but switched sides – agreed with the challengers and overruled Gobitis, 6 to 3.

In short, Gobitis argues that requiring students to say the pledge does not violate the First Amendment, while Barnette argues that it does.

¯ Addressing the religious clauses of the First Amendment, Gobitis argues that “the freedom of religion (which) the Constitution protects has never … exempted the individual from obedience to a general law which is not intended to promote or restrict religious beliefs.”

Gobitis then argues that even though requiring students to say the pledge amounts to what is now called forced speech, “The question remains whether school children, like Gobitis children, should be excused from the conduct required of all other children in the promotion of national cohesion. We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security.

Please think about this statement and imagine where we would be if the government – for the sake of national cohesion – could make us say what we do not believe.

Having seen no First Amendment violations and having such high national cohesion, Gobitis defers to the legislatures on how best to achieve national cohesion: “The wisdom of training children in patriotic impulses through those compulsions that necessarily permeate so much of the educational process is beyond our independent judgment.”

So please think about this statement and imagine where it might lead: “What the school authorities are really claiming is the right to arouse in the mind of the child considerations as to the meaning of the flag contrary to those implanted by the parent.”

¯ By contrast, Barnette considers only the First Amendment’s free speech clause and, unlike Gobitis, sees a violation of the First Amendment in forced speech: “In support of the obligatory salute of the flag, we are bound to say that a bill of rights which protects the right of the individual to say what he thinks, has left the possibility for public authorities to compel him to say what which is not in his mind.”

As for national cohesion, which Barnette calls “national unity”: “National unity as an end (that) those in charge can promote by persuasion and example is not in question. The problem is whether, under our Constitution, coercion as employed here is a permissible means for its accomplishment.

To put it in the current terms of the First Amendment, Barnette does not doubt the government’s interest in promoting national unity. However, requiring students to say that engagement is not sufficiently suited to this interest. Thus, requiring students to say that the pledge violates the First Amendment.

Justices Hugh Black and William Douglas, who had signed with Gobitis, switched sides to Barnette. Their concurring opinion is not based on the freedom of speech clause of the First Amendment, but on the freedom of religion that the First Amendment protects.

Jackson, Black and Douglas got this one right.

Dr. Randy Elf joins the Fenton History Center in welcoming the community at noon on Wednesday, May 11.


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