Liberty's flame

An anti-desecration amendment is no way to honor the flag

Freedom Watch by Harvey Silverglate

Low comedy combined with high tragedy last week as Tommy Lasorda, general manager of the Los Angeles Dodgers, joined forces with Richard D. Parker, professor of constitutional law at Harvard Law School. The two were among the witnesses who came before the Senate Judiciary Committee to argue for a constitutional amendment, already approved by the committee, that would make it a crime to burn or otherwise desecrate the American flag.

The issue has been hot since 1989, when the Supreme Court struck down a Texas flag-burning statute. A law designed to punish so clearly political an act, the Court reasoned, was simply not consistent with the First Amendment's protection of free speech. Now, almost a decade later, Congress is poised to eviscerate that ruling. A flag-desecration amendment passed the House of Representatives overwhelmingly last year and has 61 sponsors in the Senate -- just six short of the two-thirds majority it would need in a full Senate vote scheduled for the fall. If it passes, it will almost certainly be ratified by at least three-quarters of the states -- making enforced patriotism a permanent part of the Constitution.

Cynics may have giggled when Lasorda told the Senate about a 1976 incident in which protesters tried to set a flag on fire during a game between the Dodgers and the Cubs; a Chicago outfielder, he recalled, seized the flag and ran into the dugout as the crowd sang "God Bless America." But it was Parker's testimony that pained civil libertarians, because he is a generally well-respected expert on constitutional law. He testified, according to the New York Times, that the Supreme Court was in error in its 1989 ruling, and that the "legal elite" were in error in supporting the Court's decision. "The Court and the Constitution are not the same thing," he said. "The flag represents not the freedom to burn it, but an ideal and aspiration for national community."

But how, in a society that claims to respect freedom of speech and of conscience -- not to mention a society of extraordinary philosophical and intellectual diversity -- can Congress make it a crime to demonstrate contempt for the majority's view of what it means to be a loyal American? Parker, at least, should be familiar with the history of what happened the last time the Supreme Court allowed the legislature to enforce the majority's view of how a patriotic person must behave. It is a story that every American should know.

On June 3, 1940, with most of the world at war, the Supreme Court decided the case of Minersville School District v. Gobitis. A Jehovah's Witness had challenged a requirement that his children salute the American flag in school, citing his religion's understanding of Exodus, which prohibits worship of any "graven image."

But the Court -- relying on the principle that a government must protect national cohesion, and that liberty must be an "ordered" liberty -- ruled that the mandatory salute did not violate the First Amendment. The opinion was written by Justice Felix Frankfurter, himself a member of a religious minority (he was Jewish) and a former professor at Harvard Law School. "The ultimate foundation of a free society is the binding tie of cohesive sentiment," wrote Frankfurter for the Court majority. Frankfurter's view was endorsed by all members of the Court except one.

The message was heard. Almost immediately came a barrage of attacks on Jehovah's Witnesses. According to legal scholar Samuel Walker, nearly the entire population of Litchfield, Connecticut, assaulted a group of 60 Jehovah's Witnesses. One Witness was castrated in Nebraska. More than 2000 young Witnesses were expelled from public schools within three years as school boards, encouraged by the Gobitis opinion, promulgated ever-stricter flag-salute requirements. All told, the American Civil Liberties Union documented violence against Witnesses in more than 355 localities in 44 states. Self-declared patriots felt that the Supreme Court had given them license to extort participation in "patriotic" rituals from those conscientiously opposed to such obeisance.

Yet just three years later, the Court dramatically reversed itself with one of the most eloquent decisions in its history.

The West Virginia legislature had enacted a statute requiring all public and private schools to teach and foster "the ideals, principles, and spirit of Americanism." A daily flag salute was part of the required regimen. Refusal to participate exposed students to dismissal and subjected their parents to criminal penalties. Again, a member of the Jehovah's Witnesses refused to exalt the flag over personal belief and conscience.

The 6-3 decision, written by Justice Robert Jackson (later to become the chief prosecutor at the Nuremberg war crimes tribunal), recognized that more was at stake than religious liberty. The question was how far the government should be allowed to go in coercing expressions of belief. Jackson and the Court had no quarrel with West Virginia's requirement that certain courses be taught, nor with attempts to inspire patriotism by exposing students to national history and traditions. The board's flag-salute requirement was different, however, because it compelled a student "to declare a belief [and] . . . to utter what is not in his mind." In matters of belief, Jackson wrote, human beings were essentially distinct, and each was free to find "jest and scorn" where another found "comfort and inspiration."

The Court found that "individual freedom of mind" trumped the "officially disciplined uniformity for which history indicates a disappointing and disastrous end." Enforced conformity in matters of patriotism, far from teaching the value of liberty, would "strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes."

Leaders both good and evil had attempted "to coerce uniformity of sentiment in support of some end thought essential." Those goals had been variously racial, territorial, and religious, but each such effort, Jackson reasoned, raised the bitter and profoundly divisive question of "whose unity it shall be." Nothing, ultimately, would rend society more violently than "finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing." Surely all of human history taught the "ultimate futility of such attempts to compel coherence": consider the Roman efforts to destroy Christianity, the Spanish Inquisition, and "the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies." In short, Jackson wrote, "compulsory unification of opinion achieves only the unanimity of the graveyard."

For the Court, arguments that wartime and patriotism raised singular problems constituted "an unflattering estimate of the appeal of our institutions to free minds." If we did not tolerate eccentricity and "abnormal attitudes," we could not have either our treasured "intellectual individualism" or our "rich cultural diversities."

It would violate the very spirit of liberty to make an exception on behalf of what society deemed its most important beliefs. The "freedom to differ is not limited to things that do not matter much," the Court ruled. "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," Jackson wrote, "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" in them. It was this case, not the infamous Gobitis decision, that became the landmark, defining the constitutional and moral norms: the primacy of individual conscience over the claimed social benefits of conformity; the need for each individual to enjoy liberty in order for a common liberty to exist.

Most impressive, the Court came to this conclusion in a time of extreme national danger. Today, the Senate debates enforced patriotism in a time of peace, when the United States is the sole remaining superpower in the world. One would hope that Parker -- and perhaps even Lasorda, and some of those who sponsored their appearance before the Judiciary Committee -- might reexamine our history. Perhaps the undecided members of the Senate will, like the Supreme Court in 1943, take a step back and see where the true interests of a free nation lie.

Harvey Silverglate is the coauthor, with Alan Charles Kors, of the forthcoming book The Shadow University: The Betrayal of Liberty on America's College Campuses (Free Press, October 1998). A portion of this article is adapted from the book.