West Virginia State Board of Education V. Barnette - Decision of The Court - Majority Opinion

Majority Opinion

Justice Robert Jackson, who had joined the court only two years earlier, wrote the decision, echoing the free-expression sentiments of Stromberg v. California.

The opinion that Justice Felix Frankfurter had authored three years earlier in Gobitis rested on four arguments. In Barnette Justice Jackson addressed each element of Frankfurter’s Gobitis decision. Jackson began with Frankfurter’s designation of the flag as a national symbol. He did not question Frankfurter’s designation of the flag as a national symbol; instead, he criticized the pedestal on which Frankfurter put such national symbols. Jackson called symbols a “primitive but effective way of communicating ideas,” and explained that “a person gets from a symbol the meaning he puts into it, and what is one man’s comfort and inspiration is another’s jest and scorn.”

Next Jackson denied Frankfurter’s argument that flag-saluting ceremonies were an appropriate way to build the “cohesive sentiment” that Frankfurter believed national unity depended on. Jackson rejected Frankfurter’s argument, citing the Roman effort to drive out Christianity, the Spanish Inquisition of the Jews and the Siberian exile of Soviet dissidents as evidence of the “ultimate futility” of efforts to coerce unanimous sentiment out of a populace. Jackson warned that “hose who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

Then Jackson dealt with Frankfurter’s assertion that forcing students to salute the flag, and threatening them with expulsion if they chose not to, was a permissible way to foster national unity. Jackson’s rejection of this section of Frankfurter’s argument has proved the most quoted section of his opinion. In his Gobitis opinion Frankfurter’s solution was for the dissenters to seek out solutions to their problems at the ballot box. Jackson responded that the conflict in this case was between authority and the individual and that the founders intended the Bill of Rights to put some rights out of reach from majorities, ensuring that some liberties would endure beyond political majorities. Jackson wrote:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

The last leg of Frankfurter’s Gobitis opinion reasoned that matters like saluting the flag were issues of “school discipline” that are better left to local officials rather than federal judges. Justice Jackson rejected this argument as well:

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.