Barnette and Johnson: A Tale of Two Opinions
16 Pages Posted: 21 Jun 2016
Date Written: 1990
Among other things, the final two years of the 1980s could well be remembered as a period of patriotic symbols, especially in the area of American constitutional law. During the summer of 1988, debate in the presidential campaign turned to the Pledge of Allegiance to the flag. George Bush criticized Michael Dukakis for vetoing a Massachusetts bill that would have required public school teachers to lead their students in reciting the Pledge of Allegiance. Dukakis defended his action by citing an advisory opinion he had requested from the Supreme Court of Massachusetts which concluded that the bill violated the first amendment. Although Dukakis's position may have been constitutionally correct, there is no question that Bush's position was more appealing to the voting public.
The controversy over the Pledge of Allegiance seemed relatively tame compared to the storm of outrage that greeted the Supreme Court's decision in Johnson v. Texas the following year. In Johnson, the Court invalidated a criminal conviction under a Texas statute that prohibited the "intentional[... desecrat[ion of a]... national flag... in a way that the actor knows will seriously off end one or more persons likely to observe... his actions." By a five to four vote, the Court held that the conviction violated Johnson's first amendment freedom of expression. Public reaction was swift and vigorous. The debate quickly focused on whether the decision could be overruled by statute or whether a constitutional amendment would be necessary. Shortly after the decision, President Bush proposed a constitutional amendment that would provide Congress and the states with the power to prohibit desecration of the American flag. Congress instead chose to pass a statute entitled the Flag Protection Act of 1989, which it concluded was constitutionally consistent with the Johnson decision. President Bush did not veto the bill, however, he chose not to sign it based on his opinion that a constitutional amendment was required to circumvent Johnson. As this article went to press, the United States Supreme Court invalidated the 1989 Act in consolidated appeals from two recent challenges to it styled United States v. Eichman.
Keywords: First Amendment, constitutional law, Johnson v. Texas, 1980s, Flag Protection Act of 1989, United States v. Eichman, Supreme Court rulings
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