The 80th anniversary of D-Day, justly commemorated as history’s greatest military invasion, reminds us of the fact that World War II was waged to defeat the forces of authoritarianism abroad so our constitutional democracy and all that comes with it — freedom, justice and the rule of law — could be preserved at home.
When American soldiers stormed the beaches at Normandy on June 6, 1944, they fought for the cherished principles embodied in the Constitution and those trumpeted by the Bill of Rights: Limited governmental powers confined by the Constitution, freedom of speech, press and religion, equal protection of the law, due process of the law and popular sovereignty. If allied forces had not prevailed, those constitutional principles and democratic values might have been lost forever.
War abroad to preserve democracy at home cannot by itself succeed if America’s governmental institutions, including the Supreme Court, fail to defend fundamental constitutional principles. Fully informed and influenced by the existential threats that authoritarianism posed to our constitutional democracy in World War II, the Court, in West Virginia Bd. of Education v. Barnette (1943), in what represented Justice Robert H. Jackson’s most memorable and eloquent opinion, delivered a 6-3 decision that enjoys its lofty status in the pantheon of landmark cases extolling the virtues of freedom of speech, religion and constitutionally limited government.
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The State of West Virginia had enacted a law that required teachers and students to salute the flag and recite the Pledge of Allegiance each day. The Supreme Court, three years before, in Minersville v. Gobitis (1940), had upheld a similar Pennsylvania statute, asserting that the law served to promote the goals of citizenship and the interests of national unity and security. Scholars and organizations as patriotic as the American Legion had roundly criticized the compulsory statute, believing the question of saluting the flag should be voluntary.
Now the Barnette Court, in full view of the fact that Germans, in the iron grip of Hitler’s totalitarianism, were required by law to salute the Fuhrer, recoiled at the prospect of imposing on Americans a requirement that they, too, assume a mandated physical position to salute the flag. The Court upheld a challenge to the law brought by Jehovah’s Witnesses on the grounds that it violated their First Amendment rights of free speech and religion.
Justice Jackson wrote, “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.” West Virginia was promoting patriotism, but its means could not justify its use of coercive power.
“The Bill of Rights,” Justice Jackson said, “denies those in power any legal opportunity to coerce” allegiance. “Authority here is to be controlled by public opinion, not public opinion controlled by authority.” Jackson’s crisp contrast of the essential difference between totalitarianism, as manifested in
Hitler’s Germany, and the constitutional democracy that defines the United States, represents the governing style of a closed society and the indispensable conditions of a free and open society.
In America, as in all republics grounded on the consent of the people, national unity must be obtained through persuasion and example, not by coercion. Justice Jackson, drawing on history, and the current practice in Germany, perceived the paths and results of state coercion of beliefs, thoughts, religion and speech. “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”
Justice Jackson’s opinion was popular in the legal fraternity and throughout the nation. The eloquence of his defense of individual freedom and democracy has not been matched since.
David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and presidential power. His scholarly writings have been cited by the U.S. Supreme Court and lower courts by both Democrats and Republicans in the U.S. Congress. Adler can be reached at david.adler@alturasinstitute.com.
