affiliation not provided to SSRN
April 26, 2010
Cardozo Public Law, Policy and Ethics Journal, Vol. 8, p. 367, 2010
In West Virginia State Board of Education v. Barnette, the Court famously held that no state could prescribe an ideological orthodoxy. Yet more than sixty years later, the constitutional doctrines governing that proscription are in disarray. This article argues that Barnette’s proscription should be understood as banning the state from intentionally utilizing non-rational methods to purposely shape citizens’ ideological beliefs. After espousing this theory, the article will examine the unconstitutional condition and government speech doctrines, and demonstrate how a constitutional principle banning the prescription of orthodoxy provides them with a much-needed coherence.
Number of Pages in PDF File: 54
Keywords: Orthodoxy, Liberty, Right of Private Conscience, First Amendment, Government Speech, Unconstitutional Conditions
Date posted: June 13, 2010 ; Last revised: June 22, 2010