Justice Jackson and the Second Flag-Salute Case: Reason and Passion in Opinion Writing

Abstract

In West Virginia State Board of Education v. Barnette (1943) -- the “second flag-salute case” – the Supreme Court upheld the First Amendment right of Jehovah's Witnesses schoolchildren to refuse to salute the flag or recite the Pledge of Allegiance, state-imposed obligations that the children and their parents contended were acts of idolatry that violated Biblical commands. Judge Richard A. Posner says that Justice Robert H. Jackson's majority opinion “may be the most eloquent majority opinion” in the Court’s history. This article describes how Justice Jackson balanced two ingredients – reason and passion – that have marked rhetoric and human experience since Plato and Aristotle, that guided our nation’s Founders and early Presidents, that moved President Obama in both of his memoirs, and that otherwise continue as touchstones frequently applied in law and popular culture. Justice Jackson’s blend of reason and passion, and his mastery of the written language, bequeathed a decision whose First Amendment holding, according to Professor Charles Alan Wright, “teems with vivid expressions and memorable statements” that still express core American values.

Keywords: Barnette, Jackson, flag, rhetoric, First Amendment, West Virginia, flag-salute