I think I am in love with a Supreme Court. I am very affectionate towards the Supreme Court in general, but the Court in 1943 wins by truer feelings. I recently read
WEST VIRGINIA STATE BOARD OF EDUCATION ET AL. v. BARNETTE ET AL.
SUPREME COURT OF THE UNITED STATES
319 U.S. 624; 63 S. Ct. 1178; 87 L. Ed. 1628; 1943 U.S. LEXIS 490; 147 A.L.R. 674
[this is only for law geeks who want to go and look this up]
March 11, 1943, Argued; June 14, 1943, Decided.
In my First Amendment Law class we’re covering Establishment clause stuff where most of the dissents feel the same (Lemon test is invalid; the God of monotheism is permissible in public places; the majority is being too broad) and truth to tell a lot of the argumentation reads the same because it is written by the same people.
However reading the above case from the early 40s, I discovered a different tone, a different way of approaching Supreme Court Opinions. I found the writing here to be more libertarian, more lyrical, more polite, more mindful of Constitutional literacy in the US population and less focused on strict adherence to historical norms. The majority opinion is almost all narrative and there are fewer references to previous case law (maybe access to Lexis/Nexis, FindLaw and Oyez makes more citations feasible. Who knows?). Anyway, even the dissent was beautiful and quietly convincing.
So being a law geek, here are my favorite quotes. Having given the citation for the case I will leave it up to you and Control F to figure out where in the Opinion these quotes are from. :-D.
First, brief run-down on the case. It is about some children in the West Virginia Public School system (below high school) whom were expelled and their parents charged with allowing delinquency because the children would not salute the flag while saying the Pledge of Allegiance because, as Jehovah’s Witnesses, they felt it would be worshiping an idol. The case was about whether the state could compel children to salute to flag.
One of the beauties of this opinion is the historical perspective it gives. For example, here is the pledge the children refused to say:
“I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all”
Supporting the argument that any national credo will be offensive to some citizens the Majority writes in a footnote:
For example: Use of “Republic,” if rendered to distinguish our government from a “democracy,” or the words “one Nation,” if intended to distinguish it from a “federation,” open up old and bitter controversies in our political history; “liberty and justice for all,” if it must be accepted as descriptive of the present order rather than an ideal, might to some seem an overstatement.
In this case, the Supreme Court is essentially reversing its decade old decision in Gobitis. Here is a criticism of that opinion.
Cushman, Constitutional Law in 1939-40, 35 American Political Science Review 250, 271, observes: “All of the eloquence by which the majority extol the ceremony of flag saluting as a free expression of patriotism turns sour when used to describe the brutal compulsion which requires a sensitive and conscientious child to stultify himself in public.”
This must be my favorite quote. It nearly perfectly encapsulates why majoritarian elections cannot determine whether prayers will be said in schools or what speech should be acceptable.
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted [**1186] to vote; they depend on the outcome of no elections.
Anyhoo, I hope you enjoyed reading this!
Lawyers spend a great deal of their time shoveling smoke.
– Oliver Wendell Holmes Jr.