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In January 1942, the West Virginia State Board of Education adopted a resolution ordering that all teachers and pupils should be required to participate daily in a flag salute ritual, as a tribute to the symbol of the nation

By: EBR - Posted: Wednesday, February 1, 2017

The freedom of individual opinion and cultural diversity, which spawns from the tolerance of the many and common minds towards the few and exceptional ones, comes at the price of having occasionally to allow abnormalities and eccentricities. When, however, the freedom to differ is limited to trivialities, then it is a mere shadow of freedom; the endurance of the establishment is not so much assessed in the insignificant matters, but in those touching the core of its status.
The freedom of individual opinion and cultural diversity, which spawns from the tolerance of the many and common minds towards the few and exceptional ones, comes at the price of having occasionally to allow abnormalities and eccentricities. When, however, the freedom to differ is limited to trivialities, then it is a mere shadow of freedom; the endurance of the establishment is not so much assessed in the insignificant matters, but in those touching the core of its status.

by Dimitrios Chatzifoteinos*

In January 1942, just a month after the Japanese attack on Pearl Harbor and the official engagement of the USA in World War II, the West Virginia State Board of Education adopted a resolution ordering that all teachers and pupils should be required to participate daily in a flag salute ritual, as a tribute to the symbol of the nation.

The salute was manifested by raising the right hand and reciting an oath of loyalty to the flag and to the republic: “one nation, indivisible, with liberty and justice for all”. Disobedience to this obligation on behalf of the pupil was dealt with expulsion from the school and, potentially, the prosecution of the pupil’s parents.

Objections to this resolution were raised by parents and teachers associations, the Red Cross, the Boy and Girl Scouts and many more, but without any significant result whatsoever. Until the eleven-year-old Gathie Barnette and her nine-year-old sister Marie refused to comply, on religious grounds and according to their parents’ advice, who were Jehovah’s Witnesses. Both girls were expelled from their school.

The Barnette family resorted to the local Court of Justice and initially won the case. The Board of Education however, appealed directly to the Supreme Court, the case-law of which had until then clearly and consistently upheld claims of compliance with obligations as such. The case was argued and decided in the summer of 1943, with World War II still raging and the USA counting their dead day by day.

The opinion of the Supreme Court was delivered by Justice Robert H. Jackson; he begun by asserting that the refusal of the Barnette sisters to obey did not interfere with the right of their fellow pupils or other citizens to comply. And since what was under examination was the compulsion to declare a belief, Justice Jackson expressed his doubts whether a slow and rather strenuous process, such as the strengthening of the public respect towards the constitution, could be short-cut and rushed with a compulsory salute and a slogan.

“The flag salute”, he stated, “is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality is a short-cut from mind to mind. Causes and nations, political parties, lodges, and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas, just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn”.

The function of symbolisms was thus stripped of any supposed inherent ideological superiority of inferiority; their worth was limited to the utilitarian field of communication. But what about the feelings of the majority?

Justice Jackson clarified the relationship between democracy and fundamental rights of the individual, addressing the question if they are legitimized by their acceptance of the majority or if their institutional authority is independent of the desires of a community: “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 to vote; they depend on the outcome of no elections”.

Of course, however obvious it may be that one is not entitled to cast vote on whether some person will be servant to another, the concept of democracy has been occasionally so abused by uneducated and demagogue leaders, that, according to their reasoning, democracy just means casting vote; and they have trained the conscience and the political culture of their audience to consider a case as beneficial and legitimized, simply because it is the desire of the many.

Justice Jackson, however, wouldn’t be settled with mere theorizing; equivocations or evasions wouldn’t suffice for the substantiation of an opinion of a liberal supreme court. The particularities of the war, the perfectly understandable surge of patriotism, the need to maintain a common feeling of national pride, were not seen as obstacles to his judgment, but as supportive to the forming of a decision that would not fall short of the circumstances and would not tolerate to be utilized as a mere means of justifying an expedience or conveniences; it would actually precede its era.

It would show that the real reason for democracy and liberalism to win that war against the Nazis was the building of communities with transparent laws, with fair, clear and powerful institutions. The independence of justice, as the foundation of freedom and democracy, would not settle to be confirmed through the effortless and petty debates. It would be proven at war.

And regarding the counter-arguments that were predictably raised towards claims of national security, Justice Jackson explained that national unity, as an end which officials may foster by persuasion and example, was not here in question. The problem was whether compulsion, as employed in that particular case, was a constitutionally permissible means for its achievement. Those bent on achieving national unity through uniformity of opinion, as Justice Jackson stated, must resort to an ever-increasing severity. Coercive elimination of dissent soon leads to the extermination of the dissenters; “compulsory unification of opinion achieves only the unanimity of the graveyard”.

“The case is made difficult”, Justice Jackson noted, “not because the principles of its decision are obscure, but because the flag involved is our own. […] 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”.

The freedom of individual opinion and cultural diversity, which spawns from the tolerance of the many and common minds towards the few and exceptional ones, comes at the price of having occasionally to allow abnormalities and eccentricities. When, however, the freedom to differ is limited to trivialities, then it is a mere shadow of freedom; the endurance of the establishment is not so much assessed in the insignificant matters, but in those touching the core of its status.

“If there is any fixed star in our constitutional constellation”, Jackson concluded, “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”.

The Supreme Court deliberately decided to publish its decision on June 14th; the USA Flag Day. The Barnette family won and their school had to revoke the expulsion.
After the war, Justice R. H. Jackson was appointed by President Truman as head of the USA delegation in the assembly works of the International Military Tribunal and he was the chief prosecutor on behalf of USA at the Nuremberg Trials. He then returned to the Supreme Court, where he participated in the formation of historic jurisprudence, reversing, among others, older case-law that was maintaining racist stereotypes and behaviors. Justice Jackson died suddenly in October 1954, at age 62.

As one can see from several –often humorous– comments he included in his opinions, Justice Jackson, as a genuine liberal man and an intellectual, was always skeptical about the correctness of his views. He did not claim that he was ex cathedra qualified to teach justice; he just had the legal and institutional duty to judge. And he performed this duty with effort, impartiality and courage, in a country that was clearly founding its hegemonic position in the world on the vigor of its internal functions and institutions.

The spirit of liberty did not imply social apathy or any lack of compassion; it was an advocated, proven, conscious, ideological and scientific choice, constantly evolving and having real-life effects.

*Military legal adviser in the Hellenic Ministry of Defense

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