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Wedge of Allegiance

October 8, 2010

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.

If there is any better enunciation of the core principles and values of the First Amendment, it does not now occur to me.  Justice Robert Jackson, perhaps the Supreme Court’s most eloquent defender of freedom, wrote those immortal words in the midst of World War II while overturning a law requiring children to recite the Pledge of Allegiance in public schools in West Virginia Bd. of Ed. v. Barnette, 319 US 624 (1943).  That opinion, in and of itself, was a great act of patriotism in the service of the values of the republic for which it stands.

And yet, despite 67 years of settled law, a judge in Mississippi threw an attorney in jail for not reciting the Pledge of Allegiance in his courtroom by holding the attorney in criminal contempt of court.  The attorney only served a few hours before the judge came to his senses and released him, but the continued threat of incarceration persists, albeit in abeyance.  Judge Littlejohn might consider reading the remainder of Justice Jackson’s opinion, probably the best encapsulation of American constitutional values within a single opinion.  You might too.

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 because 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.

5 Comments leave one →
  1. MSLawyer permalink
    October 8, 2010 12:27 pm

    Unfortunately I am not sure the judge came to his senses – he released the lawyer because the lawyer was representing a client whose case was set for trial that day. The attorney moved for recusal when the case was called for trial, and the judge denied this motion. The order releasing the lawyer recites that the issue of incarcaration remains “in abeyance.”

    • SlickRickSchwartz permalink*
      October 8, 2010 1:09 pm

      Is there any more news on Danny’s status apart from what I said in my post?

  2. MSLawyer permalink
    October 8, 2010 2:40 pm

    I don’t know of any. I have been following this on

  3. fish permalink
    October 10, 2010 9:14 am

    Oxford Town, Oxford Town
    Ev’rybody’s got their hats bowed down
    The sun don’t shine above the ground
    Ain’t a-goin’ down to Oxford Town.


  1. This Title is a Lie « The New Print

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