an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
If I had to choose one Supreme Court opinion to read, it would be West Virginia State Board of Education v. Barnette. I suspect that many of you share my view. A question that I have been pondering in recent months is why this case is so special.
One answer is that Barnette is brilliant prose. Most Supreme Court opinions are dull, but Barnette has many lines that sparkle. Another idea is that Barnette represents a classic jurisprudential duel between Justice Jackson's approach (whatever you want to call it), and Justice Frankfurter's impassioned dissent in favor of judicial restraint. In that sense, Barnette is a great case for law professors to use in class. A third thought is that the subject matter of Barnette (forcing schoolchildren to salute the flag when that is contrary to their faith) touches on many of the concerns that drive modern constitutional law (respecting diversity, regulating schools, free exercise of religion) in a visceral way.
My answer, which is part of an article that I'm writing called The Canonization of the Bill of Rights, is that Barnette is exceptional because it is the case that made the Bill of Rights into a powerful force in constitutional law. Until the 1940s, the Supreme Court rarely referred to the Bill or Rights, and when it did the citations were brief and uninspired. Barnette, by contrast, cites the Bill of Rights many times and does so in a way that makes it clear that the Bill is extremely important. Barnette was the product of many forces (the fight against Fascism, FDR's unprecedented use of the Bill of Rights as a rhetorical trope, and the collapse of Lochnerian jurisprudence), but the case crystallized those trends in a way that changed the Constitution forever. Posted
by Gerard N. Magliocca [link]
Frankfurter's dissent might be eloquent or something, but honestly, how many really think that was really a hard case? Epic battles there need harder cases. I realize a case can be made for the law, but really, it's pretty weak to force kids to pledge allegiance by this particular ceremony, especially given the violence known to have been inflicted on those who did not.
And, when three of the justices actually took the time to think about the matter, they quickly changed their minds. The other changes came by retirement, Jackson himself replacing one of the original majority votes.
The Court, of course, decided many things previously that we now think pretty stupid. But, here, it wasn't much of a "duel" even at the time. Frankfurter alone provided the heat, two others simply noted that they "adhere to the views expressed" in the earlier case.
There were epic 'duels' by those justices, but this wasn't much of one. Anyway, the concurring opinions are pretty interesting too.
joe, I'm betting part of Professor Magliocca's point is that the reason why this seems like an 'easy case' to us today is because we look back down the long path that this case set constitutional jurisprudence rolling down.
Heck, I'm not even sure it's that easy of a case from today's standpoint (children have less rights, schools can be more restrictive than other government agencies, and at that time fascism/communism was even more scary than, say, drugs [which have been invoked in modern times to restrict children's rights]).
I realize it is easier now in hindsight, platform for the future and all that but heck it was not as hard as other cases (like the Japanese Internment Cases or something) even then. The lower court predicted the vote even with the earlier precedent, three justices already on record saying they changed their mind, one dissenting originally & at least one of the newbies likely to vote for the kids.
Jackson's prose is so splendid that I have quoted it innumerable times in my correspondance. However it must be noted that the eloquence fell silent when he was later part of the majority that upheld the Smith Act proscription of Communism and that was indeed a case of petty officials decreeing what was orthodox and what was forbidden.