With Liberty and Justice for All?

BRIAN: When we think about rights today, we tend to think about the Bill of Rights. And we take for granted protections against any level of government– local, state, and federal. But that’s not what the founders had in mind. They were concerned specifically about overreach by the federal government. And it wasn’t until the 1940s that the Supreme Court started considering those first 10 amendments in light of the actions of states. One of the cases that helped forge this transformation focused on, of all things, the Pledge of Allegiance.

ED: In 1935, a pair of siblings named Lillian and William Gobitas were expelled by their Pennsylvania school for refusing to recite the pledge. They were Jehovah’s Witnesses, and as such, had been taught that saluting the flag of any government amounted to idolatry. The family sued, arguing that their religious freedom had been violated. The case worked its way up to the Supreme Court, which in 1940 ruled eight-to-one against the Gobitas family.

BRIAN: Historian Sarah Barringer Gordon has written about this case. And she points out that the author of the majority opinion, Justice Felix Frankfurter, had been born into a Jewish family in Austria.

SARAH BARRINGER GORDON: What he said was, this is the way you attach a child to the United States. This kind of ritual– this kind of ritual, engaged in, with other children, in allegiance to a powerful symbol, such as the flag, was what tied Americans together, and made them a nation.

BRIAN: So it was the state’s right to promote citizenship among children?

SARAH BARRINGER GORDON: Exactly. And it’s fair to say that, in the buildup to the Second World War, there was a great sense of danger to the country. And most states enacted mandatory flag salute rituals to do just that.

BRIAN: The ruling set off a wave of violence against Jehovah’s Witnesses, who were accused of being unpatriotic in a time that demanded national unity. But a mere three years later, the court agreed to hear a case with a set of virtually identical facts. And in West Virginia Board of education v Barnett, the court reversed its earlier ruling, siding this time with the Jehovah’s Witnesses, on freedom of speech grounds. I asked Gordon about this remarkably rapid turnaround.

SARAH BARRINGER GORDON: In Supreme Court time, three years is a nanosecond. Very dramatic. It is fair to say that, when Frankfurter handed down his opinion, several of his clerks were very distressed by what had happened. And over the next couple of years, justice after justice gave hints that they might like to reconsider the opinion. In part, this was motivated by the violence around the country that embarrassed the United States and its officials.

Also though, the conduct of World War II made an enormous difference. By 1943, it had become clear that something terrible was happening in Germany. Nobody quite knew the extent of the Holocaust, but it was clear that Hitler was engaged in widespread violence against minorities– not only Jews, Jehovah’s Witnesses. 10,000 were sent to concentration camps in Germany. So this was–

BRIAN: Because they refused to–

SARAH BARRINGER GORDON: Heil Hitler. Exactly, exactly. So partly, the court and the country had learned, from the violence at home and the violence abroad, directed against minorities of all kinds, especially religious minorities.

BRIAN: Did the decision– who wrote that decision, and did it refer explicitly to either what had happened at home, or what was going on in Germany?

SARAH BARRINGER GORDON: It was Justice Jackson, who was well known after the war for his important role at the Nuremberg Trials. Jackson referred both directly and indirectly– I think, in some of the most quoted and quotable language from the Supreme Court. The eloquence of the opinion is stunning. He said, once we start looking for unanimity in these ways, we achieve only the unanimity of the graveyard.

Really powerful, dark language. When we start punishing dissenters for such mild behavior as refusing to salute, we wind up limiting the dissenters themselves. That’s the road he saw. In a footnote, as well, he referred to the fact that the salute closely resembled the salute to Hitler. This was that a raised arm, but palm up salute, before placing the hand on the heart, where Heil Hitler was a palms-down, straight arm.

BRIAN: Is that how people used to salute?

SARAH BARRINGER GORDON: It is.

BRIAN: And what was the reaction to this decision, which, in essence, was the opposite of Gobitas?

SARAH BARRINGER GORDON: So it’s very difficult for the Supreme Court to do such a thing, and hold onto its prestige and influence and respect around the country. And the Supreme Court clearly understood this. The decision was announced on Flag Day. So in part, this was about deference to considerations of the flag, as well as the conclusion that we don’t need to punish schoolchildren whose religion dictates otherwise– that small minority groups, who are not themselves violent, have the protection of the Constitution when they exercise their religion. And, I think, the deep desire among Americans to distinguish themselves from Hitler– to say, we are not like that– produced widespread satisfaction.

BRIAN: So this was a well-received decision.

SARAH BARRINGER GORDON: It was. The New York Times headline ran, blot removed.

BRIAN: And how do we get such a concern for individual rights at the very time that the state is growing? The product of the New Deal itself, and then of course, World War Two, and the Cold War that ensues. It strikes me as two different trends.

SARAH BARRINGER GORDON: It’s often said that war is the health of the state. And certainly, World War II was very healthy for the power and economy of the United States. Nonetheless, the Supreme Court– which had been, in the mid 1930s, in the business of overturning New Deal economic legislation– had really gotten out of the business of overturning such legislation, and very soon thereafter, sent hints through footnotes in economic opinions that it would begin to take the rights of discrete and insular minorities seriously, going forward. In other words, protecting constitutional rights against this very powerful new government.

BRIAN: So it’s because the state’s so powerful that the court said, we’ve got a new role here.

SARAH BARRINGER GORDON: Indeed it is. Indeed it is. It’s about what kind of government we want, given how large it’s going to be, and what the limits are we want to place on that power– an ongoing battle, one that’s never really over.

BRIAN: Sarah Barringer Gordon is a historian at the University of Pennsylvania. You can read more about this story in her book, The Spirit of the Law, Religious Voices and the Constitution in Modern America. Earlier in the show, we heard from Tony Sullivan, an artist, activist, and apartment manager in LA. His story is the focus of Limited Partnership, a documentary airing this month on PBS. You can find out more about it on our website, backstoryradio.org.

PETER: It’s time for us to take a short break. But stick around– when we get back, a court battle of epic proportions. The right to liberty takes on the right to property.