JUSTICE JACKSON: COMPELLED FLAG SALUTE UNLAWFUL

December 3, 2017. Kelley Kidd. Robert Jackson was an Associate Justice of the United States from 1942 until his death in the 1954. He had already served as Solicitor General and Attorney General of the United States. And he was the chief prosecutor at the Nuremberg trials of the Nazi war criminals following World War II. In all those jobs he had many opportunities to confront and ponder issues involving the balance between freedom of expression and the power of legally constituted authority. The continuing struggle to resolve such issues is a deep layer of the bedrock of our culture and of our daily living. These issues are often unspoken questions in our schools and work places, as well as in our media and political institutions.

While not as famous as some of the other Supreme Court members in our history, Robert Jackson remains a favorite of mine. I have frequently consulted his opinions and writings when confronted with public and private questions of conscience. Today I would like to share a few paragraphs from his opinion in West Virginia Board of Education v. Barnette. The year was 1943 and this country was in the middle of a life and death struggle with Japanese militarism, Italian Fascism and German totalitarianism. School children and their parents were threatened with official sanctions because the kids were refusing to salute the Stars and Stripes. Only three years before the Supreme Court had come near to unanimously approving similar actions taken by another school board when other children had refused to salute. But the earlier Court did not include Robert Jackson. Although an almost new member of the Court in 1943 Jackson’s words were chosen to represent the views of the Court in striking down the school board’s actions as violations of the rights of the children and their parents.


“Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of freedom’s substance is the right to differ as to things that touch the heart of the existing order.”

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

“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.”

In this current interlude, when many millions are being persuaded that athletes should be punished for not saluting our flag or anthem, Robert Jackson’s words can recall us to the sensibilities necessary to avoid the dark destinies of our authoritarian impulses. Unity and patriotism have their place, but the fixed stars of our national conscience can still guide us to much greater aspirations than any urge to seek the impossible consensus of a diverse and free people.


 

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