soldier with rifle american civil warThe Supreme Court
Wall Of Shame

The Pledge of Allegiance
Minersville School District. V. Gobitis

310 U.S. 586 (1940)
West Virginia State Bd. Of Ed v. Barnette
319 U.S. 624 (1943)

 

In 1891, Daniel Sharp Ford, the owner of the magazine, Youth's Companion, hired a man named Francis Bellamy to work in the magazine's premium department at a time when it had a subscription campaign going on, to sell American flags to schools. By 1892, the magazine had sold American flags to approximately 26,000 schools. With the market for flags slowing, the magazine came up with the idea of a flag salute to promote the sale of more flags. Bellamy was assigned the task of coming up with the "salute" which he called the Pledge of Allegiance. Bellamy's original text read this way—"I pledge allegiance to my Flag and to the Republic for which it stands, one nation, indivisible, with liberty and justice for all."

The Youths Companion masthead circa 1892

The Youths Companion Feb 22 1906 Cover

The Pledge was published in the September 8, 1892, issue of the magazine, and immediately put to use in the campaign. Bellamy went to speak to a national meeting of school superintendents to promote the celebration. The convention liked the idea and selected a committee of leading educators to implement the program Bellamy was selected as the chair. Having received the official blessing of educators, Bellamy's committee now had the task of spreading the word across the nation and of designing an official program for schools to follow on the day of national celebration. He structured the program around a flag-raising ceremony and his pledge. The recital was accompanied with a salute to the flag known as the Bellamy Salute—in essence the Nazi salute. During World War II, the Nazi salute was replaced with a hand-over-heart gesture.

Bellamy commented on his thoughts as he created the pledge, and his reasons for choosing the careful wording: "The true reason for allegiance to the Flag is the republic for which it stands. And what that phrase "the republic" mean? It is the concise political word for the Nation—the One Nation which the Civil War was fought to prove. To make that One Nation idea clear, we must specify that it is indivisible."

In 1952, in response to the supposed threat of secular communisn, the Congress passed a law that required the Pledge to be spoken with the phrase "under God" included. At this time, also, appeared "In God We Trust" on dollar bills and on coins.

In 1935, a number of children of parents adhering to the discipline of Jehovah's Witnesses were thrown out of public schools, because they refused to place their hand over their heart and recite Bellamy's pledge.

 

The lower Federal courts held that the school districts' action, of throwing the children out of public school, violated their constitutional right to the free expression, or not, of ideas. The Supreme Court, led by the law god, Felix Frankfurter, however, disagreed.

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"The Hughes Court"

Facts

Lillian Gobitis, aged twelve, and her brother, William, aged ten, were expelled from public schools in Minersville, PA, for refusing to salute the national flag as part of a daily school exercise. The local Board of Education required both teachers and pupils to participate in the ceremony. As Jehovah's Witnesses, Lillian and William have been brought up to believe that such a salute is forbidden by command of Scripture.

Decision

Frankfurter: A grave responsibility confronts this Court whenever in course of litigation it must reconcile the conflicting claims of liberty and authority. When the liberty invoked is liberty of conscience, and the authority is authority to safeguard the nation's fellowship, (what?), judicial conscience is put to its severest test.

We must decide whether the requirement of participation in such a ceremony, exacted from a child who refuses upon sincere religious grounds, infringes without due process of law the liberty guaranteed by the Foureeenth Amendment.

Note: A phrase pregnant with ambiguity: What Frankfurter means to say, is whether the child's constitutional right to the free expression of ideas—in this case her belief in "scripture—shall be trumped by Frankfurter's view of what is a more important policy; the safeguarding of the nation's fellowship."

 

When does the constitutional guarantee of freedom of religion compel expention from doing what society thinks necessary for the promotion of some great common end? . . Our task is to reconcile two rights in order to prevent either from destroying the other.

Note: Let's get this straight: A magazine, to promote sales of flags it's selling, comes up with the marketing idea of getting school districts to make mandatory the saluting of American flags, and, to make a ceremony out of it comes up with a "pledge." The "pledge" designed to make a magazine money now becomes of such importance to Frankfurter that its mandatory enunciation in classrooms is not a great societal need?

 

Situations like the present are phases of the profoundest problem confronting a democracy—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?"

Note: Frankfurter is comparing Lincoln's exercise of governmental power to crush secession, with a child's refusal to enunciate a blather of words? Just ridiculous, yet the comparison, in its essence, is still being made by the court today.

 

The case before us must be viewed as though the legislature of Pennsylvania had itself formally directed the flag-salute for the children and had made no exception for Lillian and William and did so on the basis it considered the common experience the children were to share to be good for them, an experience designed by government to inoculate the children with the attitude of appreciation of the nation's hopes and dreams, its sufferings and sacrifices (paraphrased.). For, without that sentiment, there can ultimately be no liberty. (Huh?)

This universal gesture of respect for the symbol of our national life in the setting of school is. . . really an effort to awaken in the child's mind considerations as to the significance of the flag contrary to those implanted in the parent. . . . For us to insist that, thought the ceremony might be required, immunity must be given to Lillian and William, is to maintain that there is no basis for a governmental judgment that such an exemption might cast doubts in the minds of the other children which would themselves weaken the effect of the exercise.

Harlan Fiske Stone

Harlan Stone's Dissent: Lillian and William are by the judgment of the Court held liable to expulsion from school because of their refusal to yield to the compulsion of a law which commands their participation in a school ceremony contrary to their religious convictions.

 

The law does more than suppress freedom of speech and more than prohibit the free exercise of religion. For by this law the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain. . . . Since the state in competition with parents, may through teaching in public schools indoctrinate the minds of the young, it is said that it may coerce the pupil to make affirmation contrary to his belief. And, finally, it is said that the country will be better served by conformity than by observance of religious liberty which the Constitution prescribes.

Where there are competing demands of the interest of government and of liberty under the Constitution, there must, when that is possible, be reasonable accommodation between them so as to preserve the essentials of both and it is the function of courts to determine whether such accommodation is reasonably possible.

Note: Here, in Stone's words, the student should realize, lies the ultimate truth of American political science—that the judicial function of courts, under the Constitution, is limited by the concept of what is "reasonably possible" in the balancing of a citizen's interest in being free from the government's scrutiny of her private affairs, movements, communications, thoughts, views, actions, and the government's interest in maintaining its control over her as a loyal citizen. This truth lies at the bottom of every single case that is listed in the section on this site labeled "The State of the Union."This truth, too, lies at the bottom of the Civil War, magnified by the reality it was a people struggling to be free of a government that, in their minds, oppressed them collectively.

 

The guaranties of civil liberty are but guaranties of freedom of the human mind and spirit and reasonable freedom and opportunity to express them. The every essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say. . . . I cannot conceive that, in prescribing, as limitations upon the powers of government, the freedom of the mind and spirit secured by the explicit guarantees of freedom of speech and religion, the framers intended to leave any latitude for a governmental judgment that the compulsory expression of belief which violates religious convictions would better serve the public interest than their protection. The Constitution. . . does not command such expressions or otherwise give any indication that compulsory expressions of loyalty play any such part in our scheme of government as to override the constitutional protection of freedom of speech and religion. The Constitution expresses more than the conviction of the people that democratic processes must be preserved at all costs. It is also an expression of faith and a command that freedom of mind and spirit must be preserved, which government must obey.

Query: In the 1930's, some Americans, chronicled by Hemingway in The Sun Also Rises, left the United States and went to Spain, to fight for or against Franco, in the Spanish Revolution. How is it, that a young woman who buys a plane ticket to fly to the Middle East, to join her internet lover in "Jihad," finds herself not only arrested at the airport but charged and convicted of a crime? She committed a "thought crime?" She committed a crime because she was about to commit a crime? Does it make a difference whether she was going to meet her lover in the Syrian desert, the Iraqi desert or in Afghanistan?

 

A group of people form a nonprofit organization to provide funds to groups in the Middle East for use in buying food and clothing for refugees. A crime?

The Hartford Corant, 1943

Less than four years after Frankfurter spoke one way for an almost unanimous court, in the Minersville case, Justice Jackson spoke the other way for an almost unanimous court. (By this time, Stone is now chief justice, Hughes finally having said goodbye.)

Facts

After the Minersville decision, the West Virginia legislature adopted a law that followed Frankfurter's reasoning, making the Bellamy marketing scheme a legal requirement for all schoolchildren to recite. Any child who refused to recite the Bellamy pledge would be expelled and considered a delinquent subject to prosecution and, if convicted, fined $50 and imprisoned for 30 days.

Decision, with Frankfurter dissenting

Jackson: Here, we are dealing with a compulsion of students to declare a belief. The issue here is whether the state can make a salute and slogan compulsory. The state requires the individual to communicate by word and sign his acceptance of the political ideas it bespeaks. Objection to this form of communication when coerced is an old one, well known to the framers of the Bill of Rights.

 

The compulsory flag salute requires affirmation of a belief and an attitude of mind. Suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of a kind the state is empowered to prevent and punish. Here the power of compulsion is invoked without any allegation that remaining passive during the flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute, we must say the Bill of Rights leaves it open to government to compel the individual to utter what is not in his mind.

If governmental power exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided by courts, . . . 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.

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?'" and that the answer must be in favor of strength.

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 in the state to expel a handful of children from school. If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority and would require us to override every liberty thought to weaken or delay execution of their policies.. . . Without promise of a limiting Bill of Rights it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce these rights today is not to choose weak government over strong government. It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end.

The very purpose of the 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 religion and freedom to assemble, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Note: Jackson's words ring faint in today's political atmosphere, where government, unrestrained by the courts, is freely going about the process of militarizing the nation's police departments and establishing laws for the police to use in turning society into the nightmare George Orwell dreamed.

 

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by good as well as 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. Ultimate futility of such attempts to compel adherence 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 of stamping out Paganism, . .

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.

Note: Now, here Justice Jackson falls into the common pit with Frankfurter. Mere words are nothing in the face of naked physical power the government possesses to coerce that consent.

 

Frankfurter dissents: (He takes Jackson's majority opinion personally) One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by our Constitution. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution. . . As a member of this Court I am not justified in writing my private notions of policy into the Constitution. . .  The duty of a judge who must decide which of two claims shall prevail, that of a state to enact and enforce laws or that of an individual to refuse obedience because of the demands of his conscience, is not of the ordinary person. One's own opinion should be excluded altogether when one is doing one's duty on the bench. Most unwillingly, therefore, I must differ from my brethren with regard to legislation like this. I cannot bring myself to believe that the "liberty" secured [by the Constitution] gives this Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.

Note: So, in Frankfurter's mind, the State, in the interest of promoting "good citizenship," may coerce a child to mouth words and make signs which indicate she loves her government. Does the image of the Chinese children in masse waving their red flags and singing their patriotic songs, all orchestrated by their loving government, come to mind? Or the North Korean children doing the same? Or the German children of the 30s? Or the pre-teenage boys sitting Indian style on the dirt floors of their Madras', mumbling in sing song the words of the Koran? Or the little boys with ringlets of hair by their ears doing the same with the Torah? It's called political (religious) indoctrination, Justice.

 

When Mr. Justice Holmes wrote that, `It must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts,' he went to the very essence of our constitutional system and the democratic conception of our society.

Note: Indeed he did; but, again, these are mere words, giving lip service to a "concept." In the real world of men, once the people put a person in a seat in Congress, that person's self interest is pulled this way and that by pressures and powers as great as the oceans, that more often than not induce him to vote "laws" that imprison and oppress the people who put him in the position of power he exercises. Only the judges who sit on the benches in the courts, like Frankfurter and Jackson, are objectively free, to make judgments based on abstractions, principles. Of course, that they adhere to Frankfurter's notion that personal political views be kept out of it proves often too heavy a burden of duty to bear.

 

Here comes the crux of Frankfurter's case; indeed the crux of the current Court's case in dealing with the arbitrary exercise of governmental power.

 

The determination of what is major and what is minor itself raises questions of policy. For the way in which men equally guided by reason appraise importance goes to the very heart of policy.

Note: Isn't that a wonderful sentence Frankfurter constructed? Coercing a child to mouth words of love for the Government is "minor," don't you suppose; when balanced against coercing a citizen to pledge allegiance to Government, by pain of disenfranchisement?

 

Law is concerned with external behavior and not with the inner life of man. It rests in large measure upon compulsion. The consent upon which free government rests is the consent that comes from sharing in the process of making and unmaking laws. The individual conscience. . . cannot restrict community action through political organs in matters of community concern. . . .  One may have the right to practice one's religion and at the same time owe the duty of formal obedience to laws that run counter to one's beliefs.

I am fortified in my view of this case by the fact that four times this Court has unanimously found that the requirement of such a school exercise was not beyond the power of the states. In the first three cases to come before the Court the claim made here was rejected out of hand. In the fourth the District Court's decision upholding the state was affirmed, and in the fifth, Minersville, we reversed the Court of Appeal. Even more significant is the fact that the thirteen justices who heretofore considered this issue found no constitutional difficulty. Among these are included outstanding judicial leaders: Chief Justice Hughes, Brandeis, Cardozo, to mention only those no longer on the Court.

One's conception of the Constitution cannot be severed from one's conception of a judge's function in applying it. The Court has no reason for existence if it merely reflects the pressures of the day. Our system is built on the faith that men set apart for this special function, freed from the influences of immediacy and from the deflections of worldly ambition, will become able to take a view of longer range than the period of responsibility entrusted to Congress. We are dealing with matters as to which legislators and voters have conflicting views. Are we as judges to impose our strong convictions on where wisdom lies? That which three years ago had seemed to five successive Courts to lie within permissible areas of legislation is now outlawed by the deciding shift of opinion of two justices. What reason is there to believe they may not have another view a few years hence?

Comment: Here Justice Frankfurter captures me. All of the cases showcased here, under the WALL OF SHAME, find this paragraph of Frankfurter's their curse. Men, just because they don the black robe of Judge, are still men, driven by prejudice, passion, and self-interest. More often than not, though, they struggle successfully to rise above their humanity and, like a god, see it is time to push American society forward on the road to equal justice, equal social advantage, under law.

Joe Ryan