This article rethinks the meaning of the 1943 Barnette case and questions the canonical status of Justice Robert Jackson’s famous opinion for the majority. On the assumption that we have lost sight of the logic that had been used to uphold compulsory flag salute laws, the article traces the many state court opinions on this topic prior to World War II. Also brought under scrutiny is Jackson’s usage of the term “totalitarian” to describe flag salute laws, a quasi-theological term promoted first and foremost by the Jehovah’s Witnesses. Jackson’s opinion in Barnette, while rhetorically compelling, was out of sync with his own First Amendment jurisprudence as a whole. Finally, the article highlights overlooked strengths of Justice Felix Frankfurter’s dissent in Barnette, notably his defense of state jurisdiction on the basis of epistemic pluralism. What makes Barnette a truly great case is not the often quoted passages in Jackson’s opinion but the complex interchange between Jackson and Frankfurter about the nature of democracy and judicial review.
"Life’s Complexities: Rethinking Barnette, the Flag, Totalitarianism, and the First Amendment,"
University of Massachusetts Law Review: Vol. 17:
2, Article 2.
Available at: https://scholarship.law.umassd.edu/umlr/vol17/iss2/2