West Virginia State Board of Education V. Barnette, 319 U.S. 624 (1943)

ENCYCLOPEDIA OF THE UNITED STATES SUPREME COURT, David Spinoza Tanenhaus, ed., Gale, 2008

3 Pages Posted: 16 Nov 2008

See all articles by Perry Dane

Perry Dane

Rutgers, The State University of New Jersey - Rutgers Law School

Date Written: November 15, 2008

Abstract

This entry in the Encyclopedia of the Supreme Court of the United States (David S. Tanenbaus, Editor-in-Chief) discusses the landmark decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

Barnette held that students have a constitutional right to refuse to salute the flag or recite the pledge of allegiance. The case marks an important moment in free speech jurisprudence and in the Supreme Court's treatment of the relationship between individual conscience and the state. It is particularly famous for its rhetorical flourishes, both in Justice Jackson's majority opinion and in Justice Frankfurter's vehement and unusually autobiographical dissent. It also figures importantly in the history of American minority religions and in the continuing struggle to define the fundamental kernel of American identity.

My short essay discusses, among other things, Barnette's relationship to Minersville School District v. Gobitis, 310 U.S. 586 (1940), which it overruled; the decision's major doctrinal import for establishing that the guarantee of free speech embraces, not just the right to speak, but the right to refrain from enforced speech; its much lesser significance to the law of free exercise of religion; the role the case played in the jurisprudential and often personal tension on the Court over questions of judicial restraint and constitutional method; and the different views represented in the majority and dissenting opinions, and very much alive in a continuing American debate, over the nature and central themes of American patriotism and the ability of the American community to move beyond a purely "proceduralist" conception of itself and its deepest values.

Keywords: West Virginia State Board of Education v. Barnette, first amendment, free speech, freedom of religion, right not to speak, flag salute, pledge of allegiance, patriotism, Justice Felix Frankfurter, American values, Jehovah's Witnesses, World War II

Suggested Citation

Dane, Perry, West Virginia State Board of Education V. Barnette, 319 U.S. 624 (1943) (November 15, 2008). ENCYCLOPEDIA OF THE UNITED STATES SUPREME COURT, David Spinoza Tanenhaus, ed., Gale, 2008 . Available at SSRN: https://ssrn.com/abstract=1302238

Perry Dane (Contact Author)

Rutgers, The State University of New Jersey - Rutgers Law School ( email )

NJ
United States
856-225-6004 (Phone)
856-225-6004 (Fax)

HOME PAGE: http://law.rutgers.edu/directory/view/dane

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