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Yesterday I wrote about the rank stupidity of what passes for enlightened political discourse in our country: Barack Obama and “The Star Spangled Banner”

The Raw Story
…Democratic presidential contender Sen. Barack Obama is again facing questions about his patriotism from some conservative blogs — this time for apparently failing to put his hand over his heart during a rendition of the national anthem at an Iowa campaign event….

In 1943, at a time when we were at war, the United States Supreme Court had a thing or two to say about “required” displays of patriotism.

WEST VIRGINIA STATE BOARD OF EDUCATION ET AL. v. BARNETTE ET AL., 319 U.S. 624

Justice Jackson wrote:

…The Board of Education on January 9, 1942, adopted a resolution containing recitals taken largely from the Court’s Gobitis opinion and ordering that the salute to the flag become ‘a regular part of the program of activities in the public schools,’ that all teachers and pupils ‘shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an Act of insubordination, and shall be dealt with accordingly.’ 2 [319 U.S. 624, 627] The resolution originally required the ‘commonly accepted salute to the Flag’ which it defined. Objections to the salute as ‘being too much like Hitler’s’ were raised by the Parent and Teachers Association, the Boy and Girl [319 U.S. 624, 628]  Scouts, the Red Cross, and the Federation of Women’s Clubs. 3  Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah’s Witnesses. 4  What is now required is the ‘stiff-arm’ salute, the saluter to keep the right hand raised with palm turned up while the following is repeated: ‘I pledge allegiance to the Flag of the United States of [319 U.S. 624, 629]  America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all.’

The approved gesture was alarmingly similar to fascist salutes. In 1943. Note the “approved” text of the pledge.

…Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a [319 U.S. 624, 633]  symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn….

…Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous. Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations. 14  If official power exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided by courts, but must be largely discretionary with the ordaining authority, whose power to prescribe would no doubt include power to amend. Hence validity of the asserted power to force an American citizen publicly to profess any statement of belief or to engage in any ceremony of assent to one presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in 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.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. [319 U.S. 624, 641]  As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

Justice Jackson reminds us of what the Constitution means, even in a time of war:

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….


“…If there are any circumstances which permit an exception, they do not now occur to us….” In a time of war, no less. In 1943.

“…no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion…” Powerful words. To believe otherwise would be, well….un-American.