Jackson went on to explain that schools are free to teach subjects that engender patriotism and national unity, but they must do so by persuasion and example. Compulsion is impermissible.
The court concluded:
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.
The three-judge court that first heard this West Virginia case had granted the injunction sought by the plaintiffs on the basis that the flag salute violated the First Amendment right of “freedom of worship.” The U.S. Supreme Court affirmed the West Virginia court’s decision and wrote that forcing children to say what they do not believe also impinged on the right to free speech that is guaranteed in the Bill of Rights.
I single this case out because it was an unpopular decision in 1943, in the midst of World War II when failure to salute the flag was unacceptable to most Americans. A show of patriotism was the order of the day.
Now, 60 years after Barnette and after the war with Iraq, the Texas Legislature has passed a statute that makes it mandatory for every student, every day, in every public school, to pledge allegiance to the United States of America – and to the state of Texas. The Texas statute differs from the West Virginia statute in that it allows an opt-out procedure, eliminates criminal penalties for noncompliance and adds allegiance to the state, as well as the nation. Nevertheless, compulsion remains the issue.
Jackson pointed out in the West Virginia case cited above that “freedom to differ is not limited to things that do not matter much. The test of its substance is the right to differ as to things that touch the heart of the existing order.”
Writing in the Federalist papers, Alexander Hamilton stated that there are times when what he called “a momentary inclination” happens to lay hold of a majority of our citizens, causing representatives of the people to act without deliberate reflection. We live in such times.
Undoubtedly, an overwhelming majority of citizens are proud to salute the flag and want to instill in their children a love of country and loyalty to its ideals. But if we are to abide by the rule of law, it is up to the courts to determine when laws made by our elected representatives impinge on the liberties of others. Just as the judiciary checks the other two branches of government, there are checks on courts as well. Within the judicial system there is appellate review. And under our nation’s laws the executive and legislative branches of government maintain wide authority in areas that are off-limits to the judiciary.
Finally, as lawyers we understand that it is to the U.S. Constitution all must look for guidance. When the popular will clashes with our own individual liberties we look to the courts to maintain a balance.
In another turbulent time, during the Watergate hearings, the late Barbara Jordan, the first African-American woman to serve in the Texas Legislature, said it best: “My faith in the Constitution is whole; it is complete; it is total. Let us not be spectators to its destruction.”
Rose Spector serves as a senior visiting judge, an adjunct professor at the LBJ School of Public Affairs at the University of Texas, and a mediator/arbitrator with the Austin firm of Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel. She previously served for 18 years as a trial judge and six years as a justice on the Texas Supreme Court.
