Barnette's Fixed Star, Reading the 1943 Opinion on the Pledge Passage by Passage

Some court opinions are written for lawyers. A very few are written for everyone, and survive because they are good prose attached to a true idea. West Virginia State Board of Education v. Barnette, decided on Flag Day, June 14, 1943, belongs to the second kind. Justice Robert Jackson wrote it in the middle of the largest war in the country's history, at a moment when public feeling about the flag ran as high as it has ever run, and he used it to tell the nation that the flag salute could not be forced.

That is a remarkable thing for a justice to do on the day the nation marks its flag. It is also, I will argue, one of the most patriotic things a Court has ever done. This post is a close reading in the manner of a seminar: the setting, the decision it overruled, the persecution that decision unleashed, and then the key passages, quoted exactly, one at a time, with what each meant in 1943 and means now.

The setting

In 1940 the Supreme Court decided Minersville School District v. Gobitis. The Gobitis children, Lillian and William, were Jehovah's Witnesses, who understood the biblical command not to worship anything but God as forbidding a salute to the flag. Their Pennsylvania school district expelled them for refusing. On June 3, 1940, the Court sided with the school, eight to one. Justice Frankfurter's opinion for the majority said that national unity was the basis of national security, and that the legislatures, not courts, were the proper judges of how to cultivate it. Only Justice Stone dissented.

Frankfurter, himself a member of a persecuted minority, wrote with evident feeling about it, but held that restraint was a duty of judges.

What followed Gobitis

The ruling was read by many as a licence. In the weeks and months afterward, Jehovah's Witnesses suffered a wave of mob attacks across the country. Their meeting places were attacked, and in at least one famous incident, in Maine in June 1940, a Kingdom Hall was burned by a mob. Public officials and local groups took the opinion's reasoning, many believed, as a signal that these dissenters were fair game.

This is the point that conservatives who care about order should take to heart. The Court had not commanded the violence. But a Court that says "the majority may compel conformity in this symbol" tells every local zealot what the law will tolerate. The result was a harvest of the very disorder that the compulsion was supposed to prevent. In June 1942 the Court, in Jones v. Opelika, narrowly decided a related Witness case, and three justices, Black, Douglas and Murphy, took the unusual step of saying that they now thought Gobitis had been wrongly decided. The path was open.

The case

In January 1942 the West Virginia Board of Education adopted a resolution requiring every school to have a regular salute to the flag as a part of its program, and treating a refusal as an act of insubordination, with expulsion and the threat of prosecution to follow. Witness parents, including the Barnett family, sued to stop it. The district court ruled for them. The state appealed to the Supreme Court, which heard the case in March 1943 and decided it on Flag Day, six to three. Justice Jackson wrote the opinion. Justices Frankfurter, Roberts and Reed dissented, and Frankfurter wrote the principal dissent, a document of real moral weight.

The Court's name for the family is a spelling accident. The family's name was Barnett. A clerical error made it Barnette, and the misspelling has been preserved in the reports ever since.

The key passages

Passage one: the framing of the question

"National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement."

Read this slowly. Jackson begins by conceding the goal. National unity is good. Officials may foster it. The question is the means, and the means in question is compulsion. That framing does a great deal of work. It tells the pro-flag reader that the Court is on his side as to the end, and it moves the argument to the place where it belongs: not whether we should love our country, but whether the state may force us to say so.

The distinction between persuasion and compulsion is the distinction between a free republic and a managed one. A government may teach, praise, remember, build monuments and hold ceremonies. It may not turn its schoolchildren into reciters under penalty.

Passage two: what the Bill of Rights is for

"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."

This is the constitutional heart of the opinion, and it is pure Founding. The Bill of Rights was written because the framers, who had just fought a war against arbitrary power, did not trust any majority, including their own, to respect individual liberty when it was inconvenient. Madison introduced the amendments in the First Congress in June 1789, and the states ratified ten of them in 1791. The idea is that some rights sit above the ballot box.

Conservatives who worry about unlimited majorities, which is to say anyone devoted to constitutional government, should have this passage by heart. It is the answer to anyone who says that because a thing is popular, it is permitted.

Passage three: the authority of public opinion

"Authority here is to be controlled by public opinion, not public opinion by authority."

Fourteen words. In a free country the government answers to the people, not the other way around. A mandatory flag salute reverses the order, because it uses state power to produce public opinion, and the nations that have tried it at scale are not the ones we would want to resemble. Jackson, who had not yet gone to Nuremberg, already knew what kind of regimes made loyalty a legal duty. Robert Jackson Left the Supreme Court to Prosecute the Nazis at Nuremberg tells the rest of his career.

Passage four: the fixed star

"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."

This is the sentence that gives the post its title and the opinion its fame. Three things deserve notice.

First, the list: politics, nationalism, religion, or other matters of opinion. Nationalism is on the list. In the middle of a war for national survival, the Court named the sentiment of the hour as a thing that officials may not prescribe.

Second, the phrase "high or petty." It reaches from the President to the local school board. There is no rank of official who can claim the power.

Third, the closing sentence: "If there are any circumstances which permit an exception, they do not now occur to us." That is a justice admitting the limit of his own imagination, and saying he cannot think of an exception. It is the modesty of a man who knows that every tyranny has believed in its own exception.

The phrase "force citizens to confess by word or act their faith" is also an echo of an older struggle. The Founders' generation knew of religious tests and loyalty oaths, and had fled them. Article VI of the Constitution bans any religious test as a qualification for federal office. Jackson was applying the same instinct to the flag.

Passage five: the graveyard

"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard."

The words are harsh, and they were meant to be. They were written in 1943, when the world was in the grip of governments that had begun with forced loyalty rites and ended in mass murder. Jackson draws a direct line from the compulsory salute to the larger crime. His claim is empirical as well as moral: coercion does not make believers, it makes silence, and the silence is not agreement.

There is a lesson for institutions of every kind. A company, a school or a government that forces its members to profess a creed gets professions and loses honesty. The people who most need to speak freely, the doubters, are the ones who stop. That is why the opinion belongs on the wall of every compliance office. DEI Statements Were Loyalty Oaths, and the Old Oath Cases Show Why applies the same principle to a modern case.

Passage six: the test of freedom

"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."

Every society allows disagreement about trivia. The measure of a free society is whether it allows disagreement about the things it holds most dear. A country that tolerates dissent only about the weather has tolerated nothing.

For a patriot, this is a challenge and a compliment. It says the country is strong enough to bear dissent about its dearest symbol, and that its loyalty is worth more because it is not extracted.

Passage seven: the estimate of free minds

"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."

If I had to choose a single sentence from the opinion for a school wall, I would choose this one. It makes the conservative case for freedom in a nutshell: confidence. A person who believes in his country does not fear that voluntary affection will fail. The compulsory salute is a confession of doubt. A flag that must be saluted by force is a flag whose defenders do not trust it to inspire. A flag that is saluted freely is a flag that has done its job.

Passage eight: the sphere of the intellect and spirit

"We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control."

This is the holding in the Court's own words, and it is more than a free-speech ruling. It speaks of a sphere of intellect and spirit that is reserved from official control. That is the language of conscience, which the Founders prized above almost everything. Madison's Memorial and Remonstrance of 1785 and Jefferson's Virginia Statute for Religious Freedom of 1786 both defend the same sphere. The flag salute case sits in that tradition.

The dissent, which deserves to be heard

Justice Frankfurter's dissent is a landmark in its own right. He began by saying that one who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the freedoms guaranteed by the Constitution, and that as a judge his duty was not to enforce his own opinions. His argument was one of judicial restraint: the question whether a flag ceremony promotes loyalty is a question for legislatures and school boards, and the Court has no authority to second-guess it simply because it thinks the policy unwise. He accepted that compulsion here might be unwise, perhaps even foolish. But foolishness, he said, is not unconstitutionality.

This is a respectable position, and conservatives who care about judicial restraint should not dismiss it. The problem with applying it here is the thing the First Amendment was written to prevent. When the legislature itself is the threat to a right, restraint toward the legislature is a surrender of the right. A judge who defers on every question will never be the one who protects a minority from the majority. The Bill of Rights exists for the cases where the elected branches are the problem, as the second passage above says. For a compact retelling of the case through the children's eyes, see two schoolgirls, a flag salute and the 1943 ruling that protected conscience.

Why patriots should love the ruling

The easy reading of Barnette is that it is a victory for the unpatriotic over the patriotic. It is the opposite. Here are four reasons a lover of the country should cherish it.

1. It was decided in wartime. The nation was at war with regimes that demanded conformity. The Court's answer was that the difference between us and them was precisely that we do not compel it.
2. It protects loyalty that is real. A pledge forced from a child is a recitation. A pledge given freely is a promise. The rule gives patriotism its meaning.
3. It protects the believer. The Witness children refused the salute out of religious conviction. A country that makes room for such a conscience is a country in which every person of faith can worship as conscience directs, including the ones who are in the majority today and may not be tomorrow.
4. It is the best answer to the other side's own demands. The reasoning that protects the Witness child from the flag salute also protects a student from being forced to recite a creed of any kind. That rule serves every citizen, whatever the creed of the hour, and Speech, Pronouns and Compelled Words, Where the First Amendment Draws the Line shows where it applies today.

The ruling did not end the Pledge. Children across the country still say it every morning, and millions say it gladly. What changed is that no child can be punished for staying quiet. The Pledge's later history, including the addition of "under God" in 1954, is told in The Pledge of Allegiance From 1892 to Under God, and the Fights Along the Way.

The case in brief

1. Barnette (June 14, 1943) overruled Gobitis (1940) and held that a state cannot compel schoolchildren to salute the flag and recite the Pledge.
2. Gobitis was followed by mob violence against Jehovah's Witnesses, a lesson in what happens when the law licenses compulsion.
3. Jackson framed the question as one of means, not ends: unity may be fostered by persuasion and example, but not by force.
4. The fixed-star passage forbids any official, high or petty, from prescribing orthodoxy in politics, nationalism, religion or opinion.
5. Patriots should love the ruling because loyalty that is free is worth more than loyalty that is forced, and a country confident in its institutions does not need to compel affection.

What you can do: read the Barnette opinion in full, which runs only a few pages and is free through the Supreme Court's website and the Library of Congress, and read the fixed-star passage aloud to someone you love.