September 7, 2014
"The Law" has a characteristic of being a gift from a higher power, as perhaps it must to control that part of humanity rooted in our primate brutal heritage. This perception extends from the ten commandments given by God, Sharia Law, also from God-called-Allah as conveyed by his Prophet; to the fundamental law of this country, created by those now revered founders who created a Constitution that allowed a compact of independent states to form a nation.. It is this constitution that both empowers, but also places limits on a government by the people. The compact was meant, like the ten commandments, to be eternal -- a bit less so since a super-majority can decide to change it.
Therefore this Constitution, as defined by the Judiciary system, can give an individual on the lowest ladder of our society the ability to negate the authority of the most powerful governmental and police agencies when "constitutional law is on his side." It also allows a single citizen to attempt, ideally by appealing to the law based body, but ultimately by the judiciary of the country to negate activity that is unconstitutional. A Constitutional principle can easily become lost among the deluge of mass media and partisan politics, becoming all but forgotten by lawmakers and citizens, yet such principles and the court decisions that define them have no expiration date, and are good until overruled.
This has happened with the Pledge of Allegiance, as the insertion of the words, "under God" in 1954 has changed the focus of the claims to unconstitutionality from one part of the first amendment, prohibition of abridging the freedom of speech, to another, prohibition of any law respecting an establishment of religion. The prior focus, however, still stands.
The Supreme Court Decision known as the Barnette case, was decided in 1943 during a time that has similarities to what is happening at this moment, when America was at war with a power very much like that of ISIL or the Islamic Caliphate. Both this current growing caliphate of the Islamic world and the Nazi movement shared a genocidal hatred of those were not of their religio-racial ideology. While this could have resulted in a resurgence of patriotism in America, one particular Supreme Court Justice, Robert Jackson, wrote the majority decision that conveyed why American patriotism is, and must, be different than those of our enemies. This decision which defines the unique quality of American patriotism is found in his decision ruling that the very idea of an official Pledge of Allegiance is an ultimate affront to our constitution. This is something that I am convinced applies more urgently today, and certainly is worth any personal inconvenience to make this point at a public venue.
Robert Jackson's brilliant final paragraphs, parenthetically by a Justice none other than whom Antonin Scalia stated here is his most admired, deserves quoting at this time and for posterity:
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.
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
Last week in the small Florida city of Winter Garden, a man, Joseph Richardson, who refused to stand for the Pledge of Allegiance was ejected by the local police, as described and shown on video here, most likely under authority such as that of ordinances of the city of Encinitas that is shown in the addenda below. His remaining seated was an expression of his rejection of reciting of the The Pledge of Allegiance.
Under Encinitas local ordinance such expression of rejection of this pledge would allow a mayor to continue the chain of actions that ended with the exiting of the Florida dissenter, leading to arrest and criminal prosecution for a misdemeanor. This threat based on this city's law, even in the absence of implementation, constitutes compelling of speech, legally any expressive action including silence, that the Barnette decision explicitly invalidates as being unconstitutional.
It is at this time, when the systematic mass slaughter of innocents in Iraq and Syria has the potential of involving the United State of America in a major war, that the principles articulated in this 1943 decision, must be given new life. The difference between American patriotism and that of the two genocidal regimes, one burgeoning today, the other defeated seven decades ago, must be brought back to our nation's consciousness.
The words of Justice Robert Jackson, supported by five of his fellow Justices, were never more important than now. It is an obligation for those so convinced to seek out examples of their abrogation, even when only in principle, and confront them for the world to see how central this is to this country. If the United States of America is exceptional, it is not because of our wealth or prowess, and certainly not for the effectiveness of our political system; but rather for this rare core principle of individual freedom that fosters a functional government based on a unique patriotism, that because of its fragility must still be protected in this day as it was in his.
The single dissenting opinion of Barnette, longer than the decision and concurrences, is by another of the great justices, Felix Frankfurter. His dissent is often a footnote attributed to his opening words reflecting being a Jew when America was fighting a war against an enemy specifically of his co-religionists. "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. Were my purely personal attitude relevant, I should wholeheartedly associate myself with the general libertarian views in the Court's opinion, representing, as they do, the thought and action of a lifetime"
It is worth exploring how this dissent cogently expresses the ethos of Judicial restraint now most espoused by Justice Antonin Scalia, ironically in opposing the decision written by the Justice most respected by this current "conservative." Frankfurter's dissent reflects the conflict between expanded interpretation of constitutional principles in contrast to his preferred deference to legislatures,, the more direct representation of the popular majority. The following are quotes from this dissent:
And surely only flippancy could be responsible for the suggestion that constitutional validity of a requirement to salute our flag implies equal validity of a requirement to salute a dictator. The significance of a symbol lies in what it represents. To reject the swastika does not imply rejection of the Cross. And so it bears repetition to say that it mocks reason and denies our whole history to find in the allowance of a requirement to salute our flag on fitting occasions the seeds of sanction for obeisance to a leader. To deny the power to employ educational symbols is to say that the state's educational system may not stimulate the imagination because this may lead to unwise stimulation.
The following quote of Frankfurter is directly on point, and raises the possibility that in the instant challenge I am making, even he may reconsider his opposition to the majority decision of Barnette:
...... It is not even remotely suggested that the requirement for saluting the flag involves the slightest restriction against the fullest opportunity on the part both of the children and of their parents to disavow, as publicly as they choose to do so, the meaning that others attach to the gesture of salute. All channels of affirmative free expression are open to both children and parents. Had we before us any act of the state putting the slightest curbs upon such free expression, I should not lag behind any member of this Court in striking down such an invasion of the right to freedom of thought and freedom of speech protected by the Constitution.-----------
We have in the instant case in Florida the action an official threatening arrest of a citizen who was exercising the very freedom of the symbolic speech of remaining seated described above. Based on the ordinance of the city of Encinitas, where the Pledge is an official agenda item, such expression of rejection could be construed as being out of order, and provide a mayor the authority to initiate a chain of demands resulting in arrest. It is for this reason, that is responsive to Frankfurter's dissent, that I make this current challenge.
The following annotated segment version is also from Frankfurters dissent, the last few sentences are unchanged and the first part has references to specific cases removed. It is from this paragraph close to the end that begins "That is the safe two-fold rule; nor is......" I feature it because it conveys the intellectual zeitgeist of his era, when the deluge of messages, sensations, emotional laden simplistic sound bites of our internet age was a minute fraction of what we all now experience.
..... the correction of legislative "mistakes" (IE voiding W.V law requiring children to recite the pledge, or overruling Obamacare) comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors. If the decisions ( lists several cases where the court did not overrule arguably harmful legislation ), had been different, and the legislation there in question, thought by many to be unconstitutional and by many more to be ill-advised, had been set aside, we should have been saved some trouble and some harm.
But I venture to think that the good which came to the country and its people from the vigorous thinking that had to be done in the political debates that followed, from the infiltration through every part of the population of sound ideas and sentiments, from the rousing into activity of opposite elements, the enlargement of ideas, the strengthening of moral fibre, and the growth of political experience that came out of it all -- that all this (productive public discourse) far more than outweighed any evil which ever flowed from the refusal of the court to interfere with the work of the legislature.
The most profound point that I personally can offer, is that what Justice Frankfurter describes in italics is a relic of his era, and no longer exists outside of a few seminars in legal history at the most select law schools. Gone are discussions in the public arena -- "rousing into activity, the enlargement of ideas, and growth of political experience." These intellectual activities have been debased into focus group defined de-intellectualized sound bites that will determine our choice of representatives in the halls of political power.
Jackson's decision was predicated on a realistic, if pessimistic, view of reality. The previous Gobitas decision only two years earlier that required Jehovah's witnesses to recite the pledge, unleashed violence described in this obituary just this week of the defendant, as:
The ruling sparked attacks on 1,488 Witnesses in 44 states, the American Civil Liberties Union reported. In West Virginia, Witnesses were forced to swallow large amounts of castor oil. In Wyoming, they were tarred and feathered; in Nebraska, they were castrated. In Maine, a mob of 2,500 burned down a local Witness place of worship, known as a Kingdom Hall.
Frankfurter's promise of prompting of independent thoughtful analysis (as idealized in italics above,) in compelled recitation of the Pledge seems out of touch, to say the least. Robert Jackson, who ironically was the least formally educated of any Supreme Court Justice in our history, understood the reality rather than the imagined idealized public, now ever so much further from this ideal-- of Frankfurter, who lived his life at the academic heights.
Jackson knew, from his farmer parents and his unschooled friends, how fragile was independent thought, how inaccessible it was to those without access to the seminars of Harvard. He knew how easily squashed were idea that seemed to be opposed to a patriotic jingoism that could be more oppressive than any brown shirted military force. He also understood how such simple decent people could be led astray, as the world was about to face the horrible consequences of Frankfurter's misplaced optimism.
Ironically only two years after his Barnette decision Robert Jackson was to prosecute the leaders of Nazi Germany over the bar of Nuremberg. Each of those Nazi leaders imposed litmus tests on all of their people with dissent having dire consequences. The result was a universality of common thought, easily directed towards a frenzied thirst for indulging in "the patriotic gore" that must be isolated from the contamination of independent thought.
Frankfurters dissent, and its assumptions, is as important as Jackson's decision in understanding our country, human nature, and the challenges of the rule law over the ages. My wish is that my meager efforts can help to advance the ideals of both men, and that we transcend the debasement of political discourse of our day in addressing this issue of official recitation of the pledge.
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Addenda:
Municipal Code City of Encinitas
2.20.060 Orderly Conduct
A: Any person who fails to comply with a direction given by the presiding officer for the purpose of maintaining order at a City Council Meeting shall be guilty of a misdemeanor.
B: All persons shall comply with the meeting procedures announced by resolution of the City Council and no person shall interfere with or interrupt a City Council Meeting.
C: The presiding officer may designate a member of the County Sheriff's Department as Sergeant at Arms who shall carry out the directions of the presiding officer.
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Report and Video of individual who was ejected from an official local government meeting in Wiinter Garden FL for refusing to stand for the Pledge of Allegiance.
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A week later the city of Winter Garden revised their regulations on prayer, which will be a moment of silence, and The Pledge of Allegiance, described in this article. It is now clearly optional by ordinance, which as of this writing is not the case in the city of Encinitas.
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As this story was breaking in Florida, and this article being written, the women who fomented the precursor to the 1943 Barnette case, the Jehovah's Witness child with the last name of her case, "Gobitas" who was in 1941 was ordered to say the pledge or be expelled, passed away. Her obituary here describes the violence against those who continued to refuse to say the pledge.
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A personal description of the outcome of the joint meeting of the Encinitas City Council and the Traffic and Public Safety Commission, with video, described above is available in this essay
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Background material
This insightful 1994 law review article looks at how reputations of Supreme Court justices are formed. Robert Jackson's serving as U.S. Prosecutor of the Nuremberg Trials for a year was seen as detracting his legal reputation, while Felix Frankfurter being a Harvard Law professor and member of FDR's administration enhanced his aura.
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