Such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning.
Failure to conform to the resolution meant expulsion from school for the student, and possible prosecution for the student’s parents for encouraging the student to not go to school. 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 to vote; they depend on the outcome of no elections. Reflection has convinced me that as a judge I have no loftier duty or responsibility than to uphold that spiritual freedom to its farthest reaches.
] 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. Particularly in legislation affecting freedom of thought and freedom of speech much which should offend a free-spirited society is constitutional.
What of conscien- We are told that a flag salute is a doubtful substitute for adequate understanding of our institutions. Mr. W. Holt Wooddell, of Webster Springs, W. Va., for appellants. The Court's 6–3 decision, delivered by Justice Robert H. Jackson, is remembered for its forceful defense of free speech and constitutional rights generally as being placed "beyond the reach of majorities and officials". attendance by punishing both parent and child. Upon the verity of this assumption depends our answer in this case. 1484.
Justice Robert Jackson wrote the 6-3 majority opinion, with Frankfurter now in dissent.
The complaint challenges an order of the State Board of Education which requires teachers and pupils to participate in the prescribed salute to the flag. Why should not the state likewise have constitutional power to make reasonable provisions for the proper instruction of children in schools maintained by it?
“Those who begin coercive elimination of dissent soon find themselves exterminating dissenters.” We should trust that patriotism will flourish even if expressions of patriotism are voluntary and spontaneous, instead of compulsory. [
Sign up for a free 7-day trial and ask it. Children and their parents may believe what they please, avow their belief and practice it. It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench. Lets Learn about the West Virginia v. Barnette Case! ', Failure to conform is 'insubordination' dealt with by expulsion. tice-thirteen in all-who has hitherto participated in judging this matter has at one or more times found no constitutional infirmity in what is now condemned. Words uttered under coercion are proof of loyalty to nothing but self- interest. , 38 S.Ct. Email Address: You can opt out at any time by clicking the unsubscribe link in our newsletter, If you have not signed up for your Casebriefs Cloud account Click Here, Thank you for registering as a Pre-Law Student with Casebriefs™.
, 60 S.Ct. These questions assume increasing importance in view of the steady growth of parochial schools both in number and in population. As long as the actions do not present a clear and present danger of the kind the state is allowed to prevent, then the Constitution encourages diversity of thought and belief.
Such compulsion is one thing. Compelling belief implies denial of opportunity to combat it and to assert dissident views. The test of its substance is the right to differ as to things that touch the heart of the existing order. 571, 39 A.L.R. It was also considered in the Gobitis case that functions of educational officers in states, counties and school districts were such that to interfere with their authority 'would in effect make us the school board for the country.'
There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution. 1010, 127 A.L.R. 1010, 127 A.L.R.
Symbolism is a primitive but effective way of communicating ideas.
If the function of this Court is to be essentially no different from that of a legislature, if the considerations governing constitutional construction are to be substantially those that underlie legislation, then indeed judges should not have life tenure and they should be made directly responsible to the electorate. [ 159, L.R.A.1918C, 361, Ann.Cas.1918B, 856. at page 1015, 127 A.L.R. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes. In Hamilton v. Regents,
3. The fact that it may be an undemocratic aspect of our scheme of government does not call for its rejection or its disuse. Such undefined destructive power was not conferred on this Court by the Constitution.
It was said that the flag-salute controversy confronted the Court with 'the problem which Lincoln cast in memorable dilemma: 'Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?" The West Virginia Board of Education made saluting the flag and reciting the pledge of allegiance compulsory for all public school students. [319 U.S. 624, 658]
] See Jefferson, Autobiography, vol. The statute requires the appellees to participate in a ceremony aimed at inculcating respect for the flag and for this country. This is very far from a fanciful suggestion for in the belief of many thoughtful people nationalism is the seed-bed of war.
concerning the intimate and essential details of such schools, intrust their control to public officers, and deny both owners and patrons reasonable choice and discretion in respect of teachers, curriculum and textbooks'. This does not mean that all matters on which religious organizations or beliefs may pronounce are outside the sphere of government. cases (except for minor deviations subsequently retraced) has this Court overruled decisions so as to restrict the powers of democratic government. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. 13. It may affirm and promote that faith-in the language of the Constitution, it may 'exercise' it freely-but it cannot thereby restrict community action through political organs in matters of community concern, so long as the action is not asserted in a discriminatory way either openly or by stealth. 268 U.S. 510, 535 pulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. Read more about Quimbee. Footnote 12 It rests in large measure upon compulsion.
Moreover, it is to be borne in mind that in a question like this we are not passing on the proper distribution of political power as between the states and the central government. It is a due observance of its limits. No contracts or commitments. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law.
There is no mysticism in the American concept of the State or of the nature or origin of its authority. No. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. 293 U.S. 245 791. Violation of that rule could result in prosecution of a non-complying student’s parents. [319 U.S. 624, 642] The requirement of Bible- reading has been justified by various state courts as an appropriate means of inculcating ethical precepts and familiarizing pupils with the most lasting expression of great English literature. McSparran v. City of Portland, The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce (adsbygoogle = window.adsbygoogle || []).push({}); West Virginia State Bd. And for me it still remains to be explained why the grounds of Mr. Justice Cardozo's opinion in Hamilton v. Regents, supra, are not sufficient to sustain the flag salute requirement. It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the state to expel a handful of children from school. 91, 75th Cong., 1st Sess., pp. , 45 S.Ct. ): [ briefs keyed to 223 law school casebooks.
313 U.S. 69, 79 , 45 S.Ct. To apply such a test is for the Court to assume, however unwittingly, a legislative responsibility that does not belong to it. science may profess what faith it chooses. Only a persistent positive translation of the faith of a free society into the convictions and habits and actions of a community is the ultimate reliance against unabated temptations to fetter the human spirit.
Nor is there any question in this case that their behavior is peaceable and orderly. [319 U.S. 624, 630] Unlock your Study Buddy for the 14 day, no risk, unlimited trial. 310 U.S. 586
[319 U.S. 624, 637]