U.S. Supreme Court West Virginia State Bd. of Educ. v. Barnette, 319
U.S. 624 (1943) West Virginia State Board of Education v. Barnette No. 591 Argued March 11, 1943 Decided June 14, 1943 319
U.S. 624 APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA Syllabus 1. State action against which the Fourteenth Amendment protects
includes action by a state board of education. P. 319 U. S.
637 .

															2. The action of a State in making it compulsory for children in
the public schools to salute the flag and pledge allegiance -- by
extending the right arm, palm upward, and declaring, "I pledge
allegiance to the flag of the United States of America and to the
Republic for which it stands; one Nation, indivisible, with liberty
and justice for all" -- violates the First and Fourteenth
Amendments. P. 319 U. S.
642 .

															So held as applied to children who were expelled for
refusal to comply, and whose absence thereby became "unlawful,"
subjecting them and their parents or guardians to punishment.

															3. That those who refused compliance did so on religious grounds
does not control the decision of this question, and it is
unnecessary to inquire into the sincerity of their views. P. 319 U. S.
634 .

															4. Under the Federal Constitution, compulsion as here employed
is not a permissible means of achieving "national unity." P. 319 U. S.
640 . Page 319 U. S. 625 5. Minersville School Dist. v. Gobitis, 310 U.
S. 586 , overruled; Hamilton v. Regents, 293 U. S. 245 ,
distinguished. Pp. 319 U. S. 642 , 319 U. S.
632 . 47 F. Supp.
251 , affirmed.

															APPEAL from a decree of a District Court of three judges
enjoining the enforcement of a regulation of the West Virginia
State Board of Education requiring children in the public schools
to salute the American flag.

															MR. JUSTICE JACKSON delivered the opinion of the Court.

															Following the decision by this Court on June 3, 1940, in Minersville School District v. Gobitis, 310 U.
S. 586 , the West Virginia legislature amended its
statutes to require all schools therein to conduct courses of
instruction in history, civics, and in the Constitutions of the
United States and of the State

															"for the purpose of teaching, fostering and perpetuating the
ideals, principles and spirit of Americanism, and increasing the
knowledge of the organization and machinery of the government."

															Appellant Page 319 U. S. 626 Board of Education was directed, with advice of the State
Superintendent of Schools, to "prescribe the courses of study
covering these subjects" for public schools. The Act made it the
duty of private, parochial and denominational schools to prescribe
courses of study "similar to those required for the public
schools." [ Footnote 1 ]

															The Board of Education on January 9, 1942, adopted a resolution
containing recitals taken largely from the Court's Gobitis opinion and ordering that the salute to the flag become "a regular
part of the program of activities in the public schools," that all
teachers and pupils

															"shall be required to participate in the salute honoring the
Nation represented by the Flag; provided, however, that refusal to
salute the Flag be regarded as an act of insubordination, and shall
be dealt with accordingly. [ Footnote 2 ] " Page 319 U. S. 627 The resolution originally required the "commonly accepted salute
to the Flag," which it defined. Objections to the salute as "being
too much like Hitler's" were raised by the Parent and Teachers
Association, the Boy and Girl Page 319 U. S. 628 Scouts, the Red Cross, and the Federation of Women's Clubs.
[ Footnote 3 ] Some modification appears to have
been made in deference to these objections, but no concession was
made to Jehovah's Witnesses. [ Footnote 4 ] What is
now required is the "stiff-arm" salute, the saluter to keep the
right hand raised with palm turned up while the following is
repeated:

															"I pledge allegiance to the Flag of the United States of Page 319 U. S. 629 America and to the Republic for which it stands; one Nation,
indivisible, with liberty and justice for all."

															Failure to conform is "insubordination," dealt with by
expulsion. Readmission is denied by statute until compliance.
Meanwhile, the expelled child is "unlawfully absent," [ Footnote 5 ] and may be proceeded against as a delinquent.
[ Footnote 6 ] His parents or guardians are liable
to prosecution, [ Footnote 7 ] and, if convicted,
are subject to fine not exceeding $50 and Jail term not exceeding
thirty days. [ Footnote 8 ]

															Appellees, citizens of the United States and of West Virginia,
brought suit in the United States District Court for themselves and
others similarly situated asking its injunction to restrain
enforcement of these laws and regulations against Jehovah's
Witnesses. The Witnesses are an unincorporated body teaching that
the obligation imposed by law of God is superior to that of laws
enacted by temporal government. Their religious beliefs include a
literal version of Exodus, Chapter 20, verses 4 and 5, which
says:

															"Thou shalt not make unto thee any graven image, or any likeness
of anything that is in heaven above, or that is in the earth
beneath, or that is in the water under the earth; thou shalt not
bow down thyself to them nor serve them."

															They consider that the flag is an "image" within this command.
For this reason, they refuse to salute it. Page 319 U. S. 630 Children of this faith have been expelled from school and are
threatened with exclusion for no other cause. Officials threaten to
send them to reformatories maintained for criminally inclined
juveniles. Parents of such children have been prosecuted, and are
threatened with prosecutions for causing delinquency.

															The Board of Education moved to dismiss the complaint, setting
forth these facts and alleging that the law and regulations are an
unconstitutional denial of religious freedom, and of freedom of
speech, and are invalid under the "due process" and "equal
protection" clauses of the Fourteenth Amendment to the Federal
Constitution. The cause was submitted on the pleadings to a
District Court of three judges. It restrained enforcement as to the
plaintiffs and those of that class. The Board of Education brought
the case here by direct appeal. [ Footnote 9 ]

															This case calls upon us to reconsider a precedent decision, as
the Court, throughout its history, often has been required to do.
[ Footnote 10 ] Before turning to the Gobitis case, however, it is desirable to notice certain
characteristics by which this controversy is distinguished.

															The freedom asserted by these appellees does not bring them into
collision with rights asserted by any other individual. It is such
conflicts which most frequently require intervention of the State
to determine where the rights of one end and those of another
begin. But the refusal of these persons to participate in the
ceremony does not interfere with or deny rights of others to do so.
Nor is there any question in this case that their behavior is
peaceable and orderly. The sole conflict is between authority and
rights of the individual. The State asserts power to condition
access to public education on making a prescribed sign and
profession and at the same time to coerce Page 319 U. S. 631 attendance by punishing both parent and child. The latter stand
on a right of self-determination in matters that touch individual
opinion and personal attitude.

															As the present CHIEF JUSTICE said in dissent in the Gobitis case, the State may

															"require teaching by instruction and study of all in our history
and in the structure and organization of our government, including
the guaranties of civil liberty, which tend to inspire patriotism
and love of country."

															310 U.S. at 310 U. S. 604 .
Here, however, we are dealing with a compulsion of students to
declare a belief. They are not merely made acquainted with the flag
salute so that they may be informed as to what it is or even what
it means. The issue here is whether this slow and easily neglected
[ Footnote 11 ] route to aroused loyalties
constitutionally may be short-cut by substituting a compulsory
salute and slogan.. [ Footnote 12 ] This issue is
not prejudiced by Page 319 U. S. 632 the Court's previous holding that, where a State, without
compelling attendance, extends college facilities to pupils who
voluntarily enroll, it may prescribe military training as part of
the course without offense to the Constitution. It was held that
those who take advantage of its opportunities may not, on ground of
conscience, refuse compliance with such conditions. Hamilton v.
Regents, 293 U. S. 245 . In
the present case, attendance is not optional. That case is also to
be distinguished from the present one, because, independently of
college privileges or requirements, the State has power to raise
militia and impose the duties of service therein upon its
citizens.

															There is no doubt that, in connection with the pledges, the flag
salute is a form of utterance. Symbolism is a primitive but
effective way of communicating ideas. The use of an emblem or flag
to symbolize some system, idea, institution, or personality is a
short-cut from mind to mind. Causes and nations, political parties,
lodges, and ecclesiastical groups seek to knit the loyalty of their
followings to a flag or banner, a color or design. The State
announces rank, function, and authority through crowns and maces,
uniforms and black robes; the church speaks through the Cross, the
Crucifix, the altar and shrine, and clerical raiment. Symbols of
State often convey political ideas, just as religious symbols come
to convey theological ones. Associated with many of these symbols
are appropriate gestures of acceptance or respect: a salute, a
bowed or bared head, a bended knee. A person gets from a Page 319 U. S. 633 symbol the meaning he puts into it, and what is one man's
comfort and inspiration is another's jest and scorn.

															Over a decade ago, Chief Justice Hughes led this Court in
holding that the display of a red flag as a symbol of opposition by
peaceful and legal means to organized government was protected by
the free speech guaranties of the Constitution. Stromberg v.
California, 283 U. S. 359 .
Here, it is the State that employs a flag as a symbol of adherence
to government as presently organized. It requires the individual to
communicate by word and sign his acceptance of the political ideas
it thus bespeaks. Objection to this form of communication, when
coerced, is an old one, well known to the framers of the Bill of
Rights. [ Footnote 13 ]

															It is also to be noted that the compulsory flag salute and
pledge requires affirmation of a belief and an attitude of mind. It
is not clear whether the regulation contemplates that pupils forego
any contrary convictions of their own and become unwilling converts
to the prescribed ceremony, or whether it will be acceptable if
they simulate assent by words without belief, and by a gesture
barren of meaning. It is now a commonplace that censorship or
suppression of expression of opinion is tolerated by our
Constitution only when the expression presents a clear and present
danger of action of a kind the State is empowered to prevent and
punish. It would seem that involuntary affirmation could be
commanded only on even more immediate and urgent grounds than
silence. But here, the power of compulsion Page 319 U. S. 634 is invoked without any allegation that remaining passive during
a flag salute ritual creates a clear and present danger that would
justify an effort even to muffle expression. To sustain the
compulsory flag salute, we are required to say that a Bill of
Rights which guards the individual's right to speak his own mind
left it open to public authorities to compel him to utter what is
not in his mind.

															Whether the First Amendment to the Constitution will permit
officials to order observance of ritual of this nature does not
depend upon whether as a voluntary exercise we would think it to be
good, bad or merely innocuous. Any credo of nationalism is likely
to include what some disapprove or to omit what others think
essential, and to give off different overtones as it takes on
different accents or interpretations. [ Footnote
14 ] If official power exists to coerce acceptance of any
patriotic creed, what it shall contain cannot be decided by courts,
but must be largely discretionary with the ordaining authority,
whose power to prescribe would no doubt include power to amend.
Hence, validity of the asserted power to force an American citizen
publicly to profess any statement of belief, or to engage in any
ceremony of assent to one, presents questions of power that must be
considered independently of any idea we may have as to the utility
of the ceremony in question.

															Nor does the issue, as we see it, turn on one's possession of
particular religious views or the sincerity with which they are
held. While religion supplies appellees' motive for enduring the
discomforts of making the issue in this case, many citizens who do
not share these religious views Page 319 U. S. 635 hold such a compulsory rite to infringe constitutional liberty
of the individual. [ Footnote 15 ] It is not
necessary to inquire whether nonconformist beliefs will exempt from
the duty to salute unless we first find power to make the salute a
legal duty.

															The Gobitis decision, however, assumed, as did
the argument in that case and in this, that power exists in the
State to impose the flag salute discipline upon school children in
general. The Court only examined and rejected a claim based on
religious beliefs of immunity from an unquestioned general rule.
[ Footnote 16 ] The question which underlies
the Page 319 U. S. 636 flag salute controversy is whether such a ceremony so touching
matters of opinion and political attitude may be imposed upon the
individual by official authority under powers committed to any
political organization under our Constitution. We examine, rather
than assume existence of, this power, and, against this broader
definition of issues in this case, reexamine specific grounds
assigned for the Gobitis decision.

															1. It was said that the flag salute controversy confronted the
Court with

															"the problem which Lincoln cast in memorable dilemma: 'Must a
government of necessity be too strong for the liberties of its
people, or too weak to maintain its own existence?', and that the
answer must be in favor of strength. Minersville School
District v. Gobitis, supra, at 310 U. S.
596 ."

															We think these issues may be examined free of pressure or
restraint growing out of such considerations.

															It may be doubted whether Mr. Lincoln would have thought that
the strength of government to maintain itself would be impressively
vindicated by our confirming power of the State to expel a handful
of children from school. Such oversimplification, so handy in
political debate, often lacks the precision necessary to postulates
of judicial reasoning. If validly applied to this problem, the
utterance cited would resolve every issue of power in favor of
those in authority, and would require us to override every liberty
thought to weaken or delay execution of their policies.

															Government of limited power need not be anemic government.
Assurance that rights are secure tends to diminish fear and
jealousy of strong government, and, by making us feel safe to live
under it, makes for its better support. Without promise of a
limiting Bill of Rights, it is Page 319 U. S. 637 doubtful if our Constitution could have mustered enough strength
to enable its ratification. To enforce those rights today is not to
choose weak government over strong government. It is only to adhere
as a means of strength to individual freedom of mind in preference
to officially disciplined uniformity for which history indicates a
disappointing and disastrous end.

															The subject now before us exemplifies this principle. Free
public education, if faithful to the ideal of secular instruction
and political neutrality, will not be partisan or enemy of any
class, creed, party, or faction. If it is to impose any ideological
discipline, however, each party or denomination must seek to
control, or, failing that, to weaken, the influence of the
educational system. Observance of the limitations of the
Constitution will not weaken government in the field appropriate
for its exercise.

															2. It was also considered in the Gobitis case that
functions of educational officers in States, counties and school
districts were such that to interfere with their authority "would
in effect make us the school board for the country." Id. at 310 U. S.
598 .

															The Fourteenth Amendment, as now applied to the States, protects
the citizen against the State itself and all of its creatures --
Boards of Education not excepted. These have, of course, important,
delicate, and highly discretionary functions, but none that they
may not perform within the limits of the Bill of Rights. That they
are educating the young for citizenship is reason for scrupulous
protection of Constitutional freedoms of the individual, if we are
not to strangle the free mind at its source and teach youth to
discount important principles of our government as mere
platitudes.

															Such Boards are numerous, and their territorial jurisdiction
often small. But small and local authority may feel less sense of
responsibility to the Constitution, and agencies of publicity may
be less vigilant in calling it to account. Page 319 U. S. 638 The action of Congress in making flag observance voluntary
[ Footnote 17 ] and respecting the conscience of
the objector in a matter so vital as raising the Army [ Footnote 18 ] contrasts sharply with these local
regulations in matters relatively trivial to the welfare of the
nation. There are village tyrants, as well as village Hampdens, but
none who acts under color of law is beyond reach of the
Constitution.

															3. The Gobitis opinion reasoned that this is a field
"where courts possess no marked, and certainly no controlling,
competence," that it is committed to the legislatures, as well as
the courts, to guard cherished liberties, and that it is
constitutionally appropriate to

															"fight out the wise use of legislative authority in the forum of
public opinion and before legislative assemblies, rather than to
transfer such a contest to the judicial arena,"

															since all the "effective means of inducing political changes are
left free." Id. at 310 U. S.
597 -598, 310 U. S.
600 .

															The very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials, and to establish
them as legal principles to be applied by the courts. One's right
to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly, and other fundamental rights may
not be submitted to vote; they depend on the outcome of no
elections. Page 319 U. S. 639 In weighing arguments of the parties, it is important to
distinguish between the due process clause of the Fourteenth
Amendment as an instrument for transmitting the principles of the
First Amendment and those cases in which it is applied for its own
sake. The test of legislation which collides with the Fourteenth
Amendment, because it also collides with the principles of the
First, is much more definite than the test when only the Fourteenth
is involved. Much of the vagueness of the due process clause
disappears when the specific prohibitions of the First become its
standard. The right of a State to regulate, for example, a public
utility may well include, so far as the due process test is
concerned, power to impose all of the restrictions which a
legislature may have a "rational basis" for adopting. But freedoms
of speech and of press, of assembly, and of worship may not be
infringed on such slender grounds. They are susceptible of
restriction only to prevent grave and immediate danger to interests
which the State may lawfully protect. It is important to note that,
while it is the Fourteenth Amendment which bears directly upon the
State, it is the more specific limiting principles of the First
Amendment that finally govern this case.

															Nor does our duty to apply the Bill of Rights to assertions of
official authority depend upon our possession of marked competence
in the field where the invasion of rights occurs. True, the task of
translating the majestic generalities of the Bill of Rights,
conceived as part of the pattern of liberal government in the
eighteenth century, into concrete restraints on officials dealing
with the problems of the twentieth century, is one to disturb
self-confidence. These principles grew in soil which also produced
a philosophy that the individual was the center of society, that
his liberty was attainable through mere absence of governmental
restraints, and that government should be entrusted with few
controls, and only the mildest supervision Page 319 U. S. 640 over men's affairs. We must transplant these rights to a soil in
which the laissez-faire concept or principle of
noninterference has withered, at least as to economic affairs, and
social advancements are increasingly sought through closer
integration of society and through expanded and strengthened
governmental controls. These changed conditions often deprive
precedents of reliability, and cast us more than we would choose
upon our own judgment. But we act in these matters not by authority
of our competence, but by force of our commissions. We cannot,
because of modest estimates of our competence in such specialties
as public education, withhold the judgment that history
authenticates as the function of this Court when liberty is
infringed.

															4. Lastly, and this is the very heart of the Gobitis opinion, it reasons that "National unity is the basis of national
security," that the authorities have "the right to select
appropriate means for its attainment," and hence reaches the
conclusion that such compulsory measures toward "national unity"
are constitutional. Id. at 310 U. S. 595 .
Upon the verity of this assumption depends our answer in this
case.

															National unity, as an end which officials may foster by
persuasion and example, is not in question. The problem is whether,
under our Constitution, compulsion as here employed is a
permissible means for its achievement.

															Struggles to coerce uniformity of sentiment in support of some
end thought essential to their time and country have been waged by
many good, as well as by evil, men. Nationalism is a relatively
recent phenomenon, but, at other times and places, the ends have
been racial or territorial security, support of a dynasty or
regime, and particular plans for saving souls. As first and
moderate methods to attain unity have failed, those bent on its
accomplishment must resort to an ever-increasing severity. Page 319 U. S. 641 As governmental pressure toward unity becomes greater, so strife
becomes more bitter as to whose unity it shall be. Probably no
deeper division of our people could proceed from any provocation
than from finding it necessary to choose what doctrine and whose
program public educational officials shall compel youth to unite in
embracing. Ultimate futility of such attempts to compel coherence
is the lesson of every such effort from the Roman drive to stamp
out Christianity as a disturber of its pagan unity, the
Inquisition, as a means to religious and dynastic unity, the
Siberian exiles as a means to Russian unity, down to the fast
failing efforts of our present totalitarian enemies. Those who
begin coercive elimination of dissent soon find themselves
exterminating dissenters. Compulsory unification of opinion
achieves only the unanimity of the graveyard.

															It seems trite but necessary to say that the First Amendment to
our Constitution was designed to avoid these ends by avoiding these
beginnings. There is no mysticism in the American concept of the
State or of the nature or origin of its authority. We set up
government by consent of the governed, and the Bill of Rights
denies those in power any legal opportunity to coerce that consent.
Authority here is to be controlled by public opinion, not public
opinion by authority.

															The case is made difficult not because the principles of its
decision are obscure, but because the flag involved is our own.
Nevertheless, we apply the limitations of the Constitution with no
fear that freedom to be intellectually and spiritually diverse or
even contrary will disintegrate the social organization. To believe
that patriotism will not flourish if patriotic ceremonies are
voluntary and spontaneous, instead of a compulsory routine, is to
make an unflattering estimate of the appeal of our institutions to
free minds. We can have intellectual individualism Page 319 U. S. 642 and the rich cultural diversities that we owe to exceptional
minds only at the price of occasional eccentricity and abnormal
attitudes. When they are so harmless to others or to the State as
those we deal with here, the price is not too great. But freedom to
differ is not limited to things that do not matter much. 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,
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
therein. If there are any circumstances which permit an exception,
they do not now occur to us. [ Footnote 19 ]

															We think the action of the local authorities in compelling the
flag salute and pledge transcends constitutional limitations on
their power, and invades the sphere of intellect and spirit which
it is the purpose of the First Amendment to our Constitution to
reserve from all official control.

															The decision of this Court in Minersville School District v.
Gobitis, and the holdings of those few per curiam decisions
which preceded and foreshadowed it, are overruled, and the judgment
enjoining enforcement of the West Virginia Regulation is Affirmed. MR. JUSTICE ROBERTS and MR. JUSTICE REED adhere to the views
expressed by the Court in Minersville
School Page 319 U. S. 643 District v. Gobitis, 310 U. S. 586 , and
are of the opinion that the judgment below should be reversed.

															[ Footnote 1 ]

															§ 134, West Virginia Code (1941 Supp.):

															"In all public, private, parochial and denominational schools
located within this state there shall be given regular courses of
instruction in history of the United States, in civics, and in the
constitutions of the United States and of the State of West
Virginia, for the purpose of teaching, fostering and perpetuating
the ideals, principles and spirit of Americanism, and increasing
the knowledge of the organization and machinery of the government
of the United States and of the state of West Virginia. The state
board of education shall, with the advice of the state
superintendent of schools, prescribe the courses of study covering
these subjects for the public elementary and grammar schools,
public high schools and state normal schools. It shall be the duty
of the officials or boards having authority over the respective
private, parochial and denominational schools to prescribe courses
of study for the schools under their control and supervision
similar to those required for the public schools."

															[ Footnote 2 ]

															The text is as follows:

															"WHEREAS, The West Virginia State Board of Education holds in
highest regard those rights and privileges guaranteed by the Bill
of Rights in the Constitution of the United States of America and
in the Constitution of West Virginia, specifically, the first
amendment to the Constitution of the United States as restated in
the fourteenth amendment to the same document and in the guarantee
of religious freedom in Article III of the Constitution of this
State, and"

															"WHEREAS, The West Virginia State Board of Education honors the
broad principle that one's convictions about the ultimate mystery
of the universe and man's relation to it is placed beyond the reach
of law; that the propagation of belief is protected, whether in
church or chapel, mosque or synagogue, tabernacle or meeting house;
that the Constitutions of the United States and of the State of
West Virginia assure generous immunity to the individual from
imposition of penalty for offending, in the course of his own
religious activities, the religious views of others, be they a
minority or those who are dominant in the government, but"

															"WHEREAS, The West Virginia State Board of Education recognizes
that the manifold character of man's relations may bring his
conception of religious duty into conflict with the secular
interests of his fellow man; that conscientious scruples have not,
in the course of the long struggle for religious toleration,
relieved the individual from obedience to the general law not aimed
at the promotion or restriction of the religious beliefs; that the
mere possession of convictions which contradict the relevant
concerns of political society does not relieve the citizen from the
discharge of political responsibility, and"

															"WHEREAS, The West Virginia State Board of Education holds that
national unity is the basis of national security; that the flag of
our Nation is the symbol of our National Unity transcending all
internal differences, however large, within the framework of the
Constitution; that the Flag is the symbol of the Nation's power;
that emblem of freedom in its truest, best sense; that it signifies
government resting on the consent of the governed, liberty
regulated by law, protection of the weak against the strong,
security against the exercise of arbitrary power, and absolute
safety for free institutions against foreign aggression, and"

															"WHEREAS, The West Virginia State Board of Education maintains
that the public schools, established by the legislature of the
State of West Virginia under the authority of the Constitution of
the State of West Virginia and supported by taxes imposed by
legally constituted measures, are dealing with the formative period
in the development in citizenship that the Flag is an allowable
portion of the program of schools thus publicly supported."

															"Therefore, be it RESOLVED, That the West Virginia Board of
Education does hereby recognize and order that the commonly
accepted salute to the Flag of the United States -- the right hand
is placed upon the breast, and the following pledge repeated in
unison: 'I pledge allegiance to the Flag of the United States of
America and to the Republic for which it stands; one Nation,
indivisible, with liberty and justice for all' -- now becomes a
regular part of the program of activities in the public schools,
supported in whole or in part by public funds, and that all
teachers as defined by law in West Virginia and pupils in such
schools shall be required to participate in the salute, honoring
the Nation represented by the Flag; provided, however, that refusal
to salute the Flag be regarded as an act of insubordination, and
shall be dealt with accordingly."

															[ Footnote 3 ]

															The National Headquarters of the United States Flag Association
takes the position that the extension of the right arm in this
salute to the flag is not the Nazi-Fascist salute,

															"although quite similar to it. In the Pledge to the Flag, the
right arm is extended and raised, palm UPWARD, whereas the Nazis
extend the arm practically straight to the front (the
finger tips being about even with the eyes), palm DOWNWARD, and the Fascists do the same, except they raise the arm
slightly higher."

															James A. Moss, The Flag of the United States: Its History and
Symbolism (1914) 108.

															[ Footnote 4 ]

															They have offered, in lieu of participating in the flag salute
ceremony "periodically and publicly," to give the following
pledge:

															"I have pledged my unqualified allegiance and devotion to
Jehovah, the Almighty God, and to His Kingdom, for which Jesus
commands all Christians to pray."

															"I respect the flag of the United States, and acknowledge it as
a symbol of freedom and justice to all."

															"I pledge allegiance and obedience to all the laws of the United
States that are consistent with God's law, as set forth in the
Bible."

															[ Footnote 5 ]

															§ 1851(1), West Virginia Code (1941 Supp.):

															"If a child be dismissed, suspended, or expelled from school
because of refusal of such child to meet the legal and lawful
requirements of the school and the established regulations of the
county and/or state board of education, further admission of the
child to school shall be refused until such requirements and
regulations be complied with. Any such child shall be treated as
being unlawfully absent from school during the time he refuses to
comply with such requirements and regulations, and any person
having legal or actual control of such child shall be liable to
prosecution under the provisions of this article for the absence of
such child from school."

															[ Footnote 6 ]

															§ 4904(4), West Virginia Code (1941 Supp.).

															[ Footnote 7 ] See Note 5 supra. [ Footnote 8 ]

															§§ 1847, 1851, West Virginia Code (1941 Supp.).

															[ Footnote 9 ]

															§ 266 of the Judicial Code, 28 U.S.C. § 380.

															[ Footnote 10 ] See authorities cited in Helvering v.
Griffiths, 318 U. S. 371 , 318 U. S. 401 ,
note 52.

															[ Footnote 11 ] See the nationwide survey of the study of American
history conducted by the New York Times, the results of which are
published in the issue of June 21, 1942, and are there summarized
on p. 1, col. 1, as follows:

															"82 percent of the institutions of higher learning in the United
States do not require the study of United States history for the
undergraduate degree. Eighteen percent of the colleges and
universities require such history courses before a degree is
awarded. It was found that many students complete their four years
in college without taking any history courses dealing with this
country."

															"Seventy-two percent of the colleges and universities do not
require United States history for admission, while 28 percent
require it. As a result, the survey revealed, many students go
through high school, college and then to the professional or
graduate institution without having explored courses in the history
of their country."

															"Less than 10 percent of the total undergraduate body was
enrolled in United States history classes during the Spring
semester just ended. Only 8 percent of the freshman class took
courses in United States history, although 30 percent was enrolled
in European or world history courses."

															[ Footnote 12 ]

															[ Footnote 13 ]

															Early Christians were frequently persecuted for their refusal to
participate in ceremonies before the statue of the emperor or other
symbol of imperial authority. The story of William Tell's sentence
to shoot an apple off his son's head for refusal to salute a
bailiff's hat is an ancient one. 21 Encyclopedia Britannica (14th
ed.) 911-912. The Quakers, William Penn included, suffered
punishment, rather than uncover their heads in deference to any
civil authority. Braithwaite, The Beginnings of Quakerism (1912)
200, 229-230, 232-233, 447, 451; Fox, Quakers Courageous (1941)
113.

															[ Footnote 14 ]

															For example: use of "Republic," if rendered to distinguish our
government from a "democracy," or the words "one Nation," if
intended to distinguish it from a "federation," open up old and
bitter controversies in our political history; "liberty and justice
for all," if it must be accepted as descriptive of the present
order, rather than an ideal, might to some seem an
overstatement.

															[ Footnote 15 ]

															Cushman, Constitutional Law in 1939-1940, 35 American Political
Science Review 250, 271, observes:

															"All of the eloquence by which the majority extol the ceremony
of flag saluting as a free expression of patriotism turns sour when
used to describe the brutal compulsion which requires a sensitive
and conscientious child to stultify himself in public."

															For further criticism of the opinion in the Gobitis case by persons who do not share the faith of the Witnesses, see: Powell, Conscience and the Constitution, in Democracy
and National Unity (University of Chicago Press, 1941) 1;
Wilkinson, Some Aspects of the Constitutional Guarantees of Civil
Liberty, 11 Fordham Law Review 50; Fennell, The "Reconstructed
Court" and Religious Freedom: The Gobitis Case in
Retrospect, 19 New York University Law Quarterly Review 31; Green,
Liberty under the Fourteenth Amendment, 27 Washington University
Law Quarterly 497; 9 International Juridical Association Bulletin
1; 39 Michigan Law Review 149; 15 St. John's Law Review 95.

															[ Footnote 16 ]

															The opinion says

															"That the flag salute is an allowable portion of a school
program for those who do not invoke conscientious scruples is
surely not debatable. But for us to insist that, though
the ceremony may be required, exceptional immunity must be given to
dissidents is to maintain that there is no basis for a
legislative judgment that such an exemption might introduce
elements of difficulty into the school discipline, might cast
doubts in the minds of the other children which would themselves
weaken the effect of the exercise."

															(Italics ours.) 310 U.S. at 310 U. S.
599 -600. And, elsewhere, the question under
consideration was stated,

															"When does the constitutional guarantee compel
exemption from doing what society thinks necessary for the
promotion of some great common end, or from a penalty for conduct
which appears dangerous to the general good?"

															(Italics ours.) Id. at 310 U. S. 593 .
And again,

															". . . whether school children, like the Gobitis children, must
be excused from conduct required of all the other children in the promotion of national cohesion. . . ."

															(Italics our.) Id. at 310 U. S.
595 .

															[ Footnote 17 ]

															Section 7 of House Joint Resolution 359, approved December 22,
1942, 56 Stat. 1074, 36 U.S.C. (1942 Supp.) § 172, prescribes no
penalties for nonconformity, but provides:

															"That the pledge of allegiance to the flag, 'I pledge allegiance
to the flag of the United States of America and to the Republic for
which it stands, one Nation indivisible, with liberty and justice
for all,' be rendered by standing with the right hand over the
heart. However, civilians will always show full respect to the flag
when the pledge is given by merely standing at attention, men
removing the headdress. . . ."

															[ Footnote 18 ]

															§ 5(a) of the Selective Training and Service Act of 1940, 50
U.S.C. (App.) § 307(g).

															[ Footnote 19 ]

															The Nation may raise armies and compel citizens to give military
service. Selective Draft Law Cases, 245 U.
S. 366 . It follows, of course, that those subject to
military discipline are under many duties, and may not claim many
freedoms that we hold inviolable as to those in civilian life.

															MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, concurring:

															We are substantially in agreement with the opinion just read,
but, since we originally joined with the Court in the Gobitis case, it is appropriate that we make a brief
statement of reasons for our change of view.

															Reluctance to make the Federal Constitution a rigid bar against
state regulation of conduct thought inimical to the public welfare
was the controlling influence which moved us to consent to the Gobitis decision. Long reflection convinced us that,
although the principle is sound, its application in the particular
case was wrong. Jones v. Opelika, 316 U.
S. 584 , 316 U. S. 623 .
We believe that the statute before us fails to accord full scope to
the freedom of religion secured to the appellees by the First and
Fourteenth Amendments.

															The statute requires the appellees to participate in a ceremony
aimed at inculcating respect for the flag and for this country. The
Jehovah's Witnesses, without any desire to show disrespect for
either the flag or the country, interpret the Bible as commanding,
at the risk of God's displeasure, that they not go through the form
of a pledge of allegiance to any flag. The devoutness of their
belief is evidenced by their willingness to suffer persecution and
punishment, rather than make the pledge.

															No well ordered society can leave to the individuals an absolute
right to make final decisions, unassailable by the State, as to
everything they will or will not do. The First Amendment does not
go so far. Religious faiths, honestly held, do not free individuals
from responsibility to conduct themselves obediently to laws which
are either imperatively necessary to protect society as a whole
from grave Page 319 U. S. 644 and pressingly imminent dangers or which, without any general
prohibition, merely regulate time, place or manner of religious
activity. Decision as to the constitutionality of particular laws
which strike at the substance of religious tenets and practices
must be made by this Court. The duty is a solemn one, and, in
meeting it, we cannot say that a failure, because of religious
scruples, to assume a particular physical position and to repeat
the words of a patriotic formula creates a grave danger to the
nation. Such a statutory exaction is a form of test oath, and the
test oath has always been abhorrent in the United States.

															Words uttered under coercion are proof of loyalty to nothing but
self-interest. Love of country must spring from willing hearts and
free minds, inspired by a fair administration of wise laws enacted
by the people's elected representatives within the bounds of
express constitutional prohibitions. These laws must, to be
consistent with the First Amendment, permit the widest toleration
of conflicting viewpoints consistent with a society of free
men.

															Neither our domestic tranquillity in peace nor our martial
effort in war depend on compelling little children to participate
in a ceremony which ends in nothing for them but a fear of
spiritual condemnation. If, as we think, their fears are
groundless, time and reason are the proper antidotes for their
errors. The ceremonial, when enforced against conscientious
objectors, more likely to defeat than to serve its high purpose, is
a handy implement for disguised religious persecution. As such, it
is inconsistent with our Constitution's plan and purpose.

															MR. JUSTICE MURPHY, concurring:

															I agree with the opinion of the Court and join in it.

															The complaint challenges an order of the State Board of
Education which requires teachers and pupils to participate in the
prescribed salute to the flag. For refusal to conform with the
requirement, the State law prescribes expulsion. Page 319 U. S. 645 The offender is required by law to be treated as unlawfully
absent from school, and the parent or guardian is made liable to
prosecution and punishment for such absence. Thus, not only is the
privilege of public education conditioned on compliance with the
requirement, but noncompliance is virtually made unlawful. In
effect, compliance is compulsory, and not optional. It is the claim
of appellees that the regulation is invalid as a restriction on
religious freedom and freedom of speech, secured to them against
State infringement by the First and Fourteenth Amendments to the
Constitution of the United States.

															A reluctance to interfere with considered state action, the fact
that the end sought is a desirable one, the emotion aroused by the
flag as a symbol for which we have fought and are now fighting
again -- all of these are understandable. But there is before us
the right of freedom to believe, freedom to worship one's Maker
according to the dictates of one's conscience, a right which the
Constitution specifically shelters. Reflection has convinced me
that, as a judge, I have no loftier duty or responsibility than to
uphold that spiritual freedom to its farthest reaches.

															The right of freedom of thought and of religion, as guaranteed
by the Constitution against State action, includes both the right
to speak freely and the right to refrain from speaking at all,
except insofar as essential operations of government may require it
for the preservation of an orderly society -- as in the case of
compulsion to give evidence in court. Without wishing to disparage
the purposes and intentions of those who hope to inculcate
sentiments of loyalty and patriotism by requiring a declaration of
allegiance as a feature of public education, or unduly belittle the
benefits that may accrue therefrom, I am impelled to conclude that
such a requirement is not essential to the maintenance of effective
government and orderly society. To many, it is deeply distasteful
to join in a public chorus of affirmation of private belief. By
some, including Page 319 U. S. 646 the members of this sect, it is apparently regarded as
incompatible with a primary religious obligation, and therefore a
restriction on religious freedom. Official compulsion to affirm
what is contrary to one's religious beliefs is the antithesis of
freedom of worship which, it is well to recall, was achieved in
this country only after what Jefferson characterized as the
"severest contests in which I have ever been engaged."

															I am unable to agree that the benefits that may accrue to
society from the compulsory flag salute are sufficiently definite
and tangible to justify the invasion of freedom and privacy that is
entailed or to compensate for a restraint on the freedom of the
individual to be vocal or silent according to his conscience or
personal inclination. The trenchant words in the preamble to the
Virginia Statute for Religious Freedom remain unanswerable:

															". . . all attempts to influence [the mind] by temporal
punishments, or burdens, or by civil incapacitations, tend only to
beget habits of hypocrisy and meanness, . . ."

															Any spark of love for country which may be generated in a child
or his associates by forcing him to make what is to him an empty
gesture and recite words wrung from him contrary to his religious
beliefs is overshadowed by the desirability of preserving freedom
of conscience to the full. It is in that freedom and the example of
persuasion, not in force and compulsion, that the real unity of
America lies.

															* See Jefferson, Autobiography, vol. 1, pp. 53-59.

															MR. JUSTICE FRANKFURTER, dissenting:

															One who belongs to the most vilified and persecuted minority in
history is not likely to be insensible to the freedoms guaranteed
by our Constitution. Were my purely personal attitude relevant, I
should wholeheartedly associate myself with the general libertarian
views in the Court's opinion, representing, as they do, the thought
and Page 319 U. S. 647 action of a lifetime. But, as judges, we are neither Jew nor
Gentile, neither Catholic nor agnostic. We owe equal attachment to
the Constitution, and are equally bound by our judicial obligations
whether we derive our citizenship from the earliest or the latest
immigrants to these shores. As a member of this Court, I am not
justified in writing my private notions of policy into the
Constitution, no matter how deeply I may cherish them or how
mischievous I may deem their disregard. The duty of a judge who
must decide which of two claims before the Court shall prevail,
that of a State to enact and enforce laws within its general
competence or that of an individual to refuse obedience because of
the demands of his conscience, is not that of the ordinary person.
It can never be emphasized too much that one's own opinion about
the wisdom or evil of a law should be excluded altogether when one
is doing one's duty on the bench. The only opinion of our own even
looking in that direction that is material is our opinion whether
legislators could, in reason, have enacted such a law. In the light
of all the circumstances, including the history of this question in
this Court, it would require more daring than I possess to deny
that reasonable legislators could have taken the action which is
before us for review. Most unwillingly, therefore, I must differ
from my brethren with regard to legislation like this. I cannot
bring my mind to believe that the "liberty" secured by the Due
Process Clause gives this Court authority to deny to the State of
West Virginia the attainment of that which we all recognize as a
legitimate legislative end, namely, the promotion of good
citizenship, by employment of the means here chosen.

															Not so long ago, we were admonished that

															"the only check upon our own exercise of power is our own sense
of self-restraint. For the removal of unwise laws from the statute
books, appeal lies not to the courts, but to the ballot and to the
processes of democratic government. " Page 319 U. S. 648 United States v. Butler, 297 U. S.
1 , 297 U. S. 79 (dissent). We have been told that generalities do not decide
concrete cases. But the intensity with which a general principle is
held may determine a particular issue, and whether we put first
things first may decide a specific controversy.

															The admonition that judicial self-restraint alone limits
arbitrary exercise of our authority is relevant every time we are
asked to nullify legislation. The Constitution does not give us
greater veto power when dealing with one phase of "liberty" than
with another, or when dealing with grade school regulations than
with college regulations that offend conscience, as was the case in Hamilton v. Regents, 293 U. S. 245 . In
neither situation is our function comparable to that of a
legislature, or are we free to act as though we were a
super-legislature. Judicial self-restraint is equally necessary
whenever an exercise of political or legislative power is
challenged. There is no warrant in the constitutional basis of this
Court's authority for attributing different roles to it depending
upon the nature of the challenge to the legislation. Our power does
not vary according to the particular provision of the Bill of
Rights which is invoked. The right not to have property taken
without just compensation has, so far as the scope of judicial
power is concerned, the same constitutional dignity as the right to
be protected against unreasonable searches and seizures, and the
latter has no less claim than freedom of the press or freedom of
speech or religious freedom. In no instance is this Court the
primary protector of the particular liberty that is invoked. This
Court has recognized what hardly could be denied, that all the
provisions of the first ten Amendments are "specific" prohibitions, United States v. Carolene Products Co., 304 U.
S. 144 , 304 U. S. 152 ,
n. 4. But each specific Amendment, insofar as embraced within the
Fourteenth Amendment, must be equally respected, and the function
of this Page 319 U. S. 649 Court does not differ in passing on the constitutionality of
legislation challenged under different Amendments.

															When Mr. Justice Holmes, speaking for this Court, wrote that

															"it must be remembered that legislatures are ultimate guardians
of the liberties and welfare of the people in quite as great a
degree as the courts," Missouri, K. & T. Ry. Co. v. May, 194 U.
S. 267 , 194 U. S. 270 ,
he went to the very essence of our constitutional system and the
democratic conception of our society. He did not mean that for only
some phases of civil government this Court was not to supplant
legislatures and sit in judgment upon the right or wrong of a
challenged measure. He was stating the comprehensive judicial duty
and role of this Court in our constitutional scheme whenever
legislation is sought to be nullified on any ground, namely, that
responsibility for legislation lies with legislatures, answerable
as they are directly to the people, and this Court's only and very
narrow function is to determine whether, within the broad grant of
authority vested in legislatures, they have exercised a judgment
for which reasonable justification can be offered.

															The framers of the federal Constitution might have chosen to
assign an active share in the process of legislation to this Court.
They had before them the well known example of New York's Council
of Revision, which had been functioning since 1777. After stating
that "laws inconsistent with the spirit of this constitution, or
with the public good, may be hastily and unadvisedly passed," the
state constitution made the judges of New York part of the
legislative process by providing that "all bills which have passed
the senate and assembly shall, before they become laws," be
presented to a Council, of which the judges constituted a majority,
"for their revisal and consideration." Art. III, New York
Constitution of 1777. Judges exercised this legislative function in
New York Page 319 U. S. 650 for nearly fifty years. See Art. I, § 12, New York
Constitution of 1821. But the framers of the Constitution denied
such legislative powers to the federal judiciary. They chose
instead to insulate the judiciary from the legislative function.
They did not grant to this Court supervision over legislation.

															The reason why, from the beginning, even the narrow judicial
authority to nullify legislation has been viewed with a jealous eye
is that it serves to prevent the full play of the democratic
process. The fact that it may be an undemocratic aspect of our
scheme of government does not call for its rejection or its disuse.
But it is the best of reasons, as this Court has frequently
recognized, for the greatest caution in its use.

															The precise scope of the question before us defines the limits
of the constitutional power that is in issue. The State of West
Virginia requires all pupils to share in the salute to the flag as
part of school training in citizenship. The present action is one
to enjoin the enforcement of this requirement by those in school
attendance. We have not before us any attempt by the State to
punish disobedient children or visit penal consequences on their
parents. All that is in question is the right of the State to
compel participation in this exercise by those who choose to attend
the public schools.

															We are not reviewing merely the action of a local school board.
The flag salute requirement in this case comes before us with the
full authority of the State of West Virginia. We are, in fact,
passing judgment on "the power of the State as a whole." Rippey
v. Texas, 193 U. S. 504 , 193 U. S. 509 ; Skiriotes v. Florida, 313 U. S. 69 , 313 U. S. 79 .
Practically, we are passing upon the political power of each of the
forty-eight states. Moreover, since the First Amendment has been
read into the Fourteenth, our problem is precisely the same as it
would be if we had before us an Act of Congress for the District of
Columbia. To suggest that we are here concerned Page 319 U. S. 651 with the heedless action of some village tyrants is to distort
the augustness of the constitutional issue and the reach of the
consequences of our decision.

															Under our constitutional system, the legislature is charged
solely with civil concerns of society. If the avowed or intrinsic
legislative purpose is either to promote or to discourage some
religious community or creed, it is clearly within the
constitutional restrictions imposed on legislatures, and cannot
stand. But it by no means follows that legislative power is wanting
whenever a general nondiscriminatory civil regulation, in fact,
touches conscientious scruples or religious beliefs of an
individual or a group. Regard for such scruples or beliefs
undoubtedly presents one of the most reasonable claims for the
exertion of legislative accommodation. It is, of course, beyond our
power to rewrite the State's requirement by providing exemptions
for those who do not wish to participate in the flag salute or by
making some other accommodations to meet their scruples. That
wisdom might suggest the making of such accommodations, and that
school administration would not find it too difficult to make them,
and yet maintain the ceremony for those not refusing to conform, is
outside our province to suggest. Tact, respect, and generosity
toward variant views will always commend themselves to those
charged with the duties of legislation so as to achieve a maximum
of good will and to require a minimum of unwilling submission to a
general law. But the real question is, who is to make such
accommodations, the courts or the legislature?

															This is no dry, technical matter. It cuts deep into one's
conception of the democratic process -- it concerns no less the
practical differences between the means for making these
accommodations that are open to courts and to legislatures. A court
can only strike down. It can only say "This or that law is void."
It cannot modify or qualify, it cannot make exceptions to a general
requirement. Page 319 U. S. 652 And it strikes down not merely for a day. At least the finding
of unconstitutionality ought not to have ephemeral significance
unless the Constitution is to be reduced to the fugitive importance
of mere legislation. When we are dealing with the Constitution of
the United States, and, more particularly, with the great
safeguards of the Bill of Rights, we are dealing with principles of
liberty and justice "so rooted in the traditions and conscience of
our people as to be ranked as fundamental" -- something without
which "a fair and enlightened system of justice would be
impossible." Palko v. Connecticut, 302 U.
S. 319 , 302 U. S. 325 ; Hurtado v. California, 110 U. S. 516 , 110 U. S. 530 , 110 U. S. 531 .
If the function of this Court is to be essentially no different
from that of a legislature, if the considerations governing
constitutional construction are to be substantially those that
underlie legislation, then indeed judges should not have life
tenure, and they should be made directly responsible to the
electorate. There have been many, but unsuccessful, proposals in
the last sixty years to amend the Constitution to that end. See Sen.Doc. No. 91, 75th Cong., 1st Sess., pp.
248-251.

															Conscientious scruples, all would admit, cannot stand against
every legislative compulsion to do positive acts in conflict with
such scruples. We have been told that such compulsions override
religious scruples only as to major concerns of the state. But the
determination of what is major and what is minor itself raises
questions of policy. For the way in which men equally guided by
reason appraise importance goes to the very heart of policy. Judges
should be very diffident in setting their judgment against that of
a state in determining what is, and what is not, a major concern,
what means are appropriate to proper ends, and what is the total
social cost in striking the balance of imponderables.

															What one can say with assurance is that the history out of which
grew constitutional provisions for religious equality Page 319 U. S. 653 and the writings of the great exponents of religious freedom --
Jefferson, Madison, John Adams, Benjamin Franklin -- are totally
wanting in justification for a claim by dissidents of exceptional
immunity from civic measures of general applicability, measures
not, in fact, disguised assaults upon such dissident views. The
great leaders of the American Revolution were determined to remove
political support from every religious establishment. They put on
an equality the different religious sects -- Episcopalians,
Presbyterians, Catholics, Baptists, Methodists, Quakers, Huguenots
-- which, as dissenters, had been under the heel of the various
orthodoxies that prevailed in different colonies. So far as the
state was concerned, there was to be neither orthodoxy nor
heterodoxy. And so Jefferson and those who followed him wrote
guaranties of religious freedom into our constitutions. Religious
minorities, as well as religious majorities, were to be equal in
the eyes of the political state. But Jefferson and the others also
knew that minorities may disrupt society. It never would have
occurred to them to write into the Constitution the subordination
of the general civil authority of the state to sectarian
scruples.

															The constitutional protection of religious freedom terminated
disabilities, it did not create new privileges. It gave religious
equality, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law
because of religious dogma. Religious loyalties may be exercised
without hindrance from the state, not the state may not exercise
that which, except by leave of religious loyalties, is within the
domain of temporal power. Otherwise, each individual could set up
his own censor against obedience to laws conscientiously deemed for
the public good by those whose business it is to make laws.

															The prohibition against any religious establishment by the
government placed denominations on an equal footing Page 319 U. S. 654 -- it assured freedom from support by the government to any mode
of worship and the freedom of individuals to support any mode of
worship. Any person may therefore believe or disbelieve what he
pleases. He may practice what he will in his own house of worship
or publicly within the limits of public order. But the lawmaking
authority is not circumscribed by the variety of religious beliefs
-- otherwise, the constitutional guaranty would be not a protection
of the free exercise of religion, but a denial of the exercise of
legislation.

															The essence of the religious freedom guaranteed by our
Constitution is therefore this: no religion shall either receive
the state's support or incur its hostility. Religion is outside the
sphere of political government. This does not mean that all matters
on which religious organizations or beliefs may pronounce are
outside the sphere of government. Were this so, instead of the
separation of church and state, there would be the subordination of
the state on any matter deemed within the sovereignty of the
religious conscience. Much that is the concern of temporal
authority affects the spiritual interests of men. But it is not
enough to strike down a nondiscriminatory law that it may hurt or
offend some dissident view. It would be too easy to cite numerous
prohibitions and injunctions to which laws run counter if the
variant interpretations of the Bible were made the tests of
obedience to law. The validity of secular laws cannot be measured
by their conformity to religious doctrines. It is only in a
theocratic state that ecclesiastical doctrines measure legal right
or wrong.

															An act compelling profession of allegiance to a religion, no
matter how subtly or tenuously promoted, is bad. But an act
promoting good citizenship and national allegiance is within the
domain of governmental authority, and is therefore to be judged by
the same considerations of power and of constitutionality as those
involved in the many Page 319 U. S. 655 claims of immunity from civil obedience because of religious
scruples.

															That claims are pressed on behalf of sincere religious
convictions does not, of itself, establish their constitutional
validity. Nor does waving the banner of religious freedom relieve
us from examining into the power we are asked to deny the states.
Otherwise, the doctrine of separation of church and state, so
cardinal in the history of this nation and for the liberty of our
people, would mean not the disestablishment of a state church, but
the establishment of all churches, and of all religious groups.

															The subjection of dissidents to the general requirement of
saluting the flag, as a measure conducive to the training of
children in good citizenship, is very far from being the first
instance of exacting obedience to general laws that have offended
deep religious scruples. Compulsory vaccination, see Jacobson
v. Massachusetts, 197 U. S. 11 , food
inspection regulations, see Shapiro v.
Lyle, 30 F.2d
971 , the obligation to bear arms, see Hamilton v.
Regents, 293 U. S. 245 , 293 U. S. 267 ,
testimonial duties, See Stansbury v.
Marks, 2 Dall. 213, compulsory medical treatment, see People v. Vogelesang, 221 N.Y. 290, 116 N.E. 977 --
these are but illustrations of conduct that has often been
compelled in the enforcement of legislation of general
applicability even though the religious consciences of particular
individuals rebelled at the exaction.

															Law is concerned with external behavior, and not with the inner
life of man. It rests in large measure upon compulsion. Socrates
lives in history partly because he gave his life for the conviction
that duty of obedience to secular law does not presuppose consent
to its enactment or belief in its virtue. The consent upon which
free government rests is the consent that comes from sharing in the
process of making and unmaking laws. The state is not shut out from
a domain because the individual conscience may deny the state's
claim. The individual conscience Page 319 U. S. 656 may profess what faith it chooses. It may affirm and promote
that faith -- in the language of the Constitution, it may
"exercise" it freely -- but it cannot thereby restrict community
action through political organs in matters of community concern, so
long as the action is not asserted in a discriminatory way, either
openly or by stealth. One may have the right to practice one's
religion and at the same time owe the duty of formal obedience to
laws that run counter to one's belief. Compelling belief implies
denial of opportunity to combat it and to assert dissident views.
Such compulsion is one thing. Quite another matter is submission to
conformity of action while denying its wisdom or virtue, and with
ample opportunity for seeking its change or abrogation.

															In Hamilton v. Regents, 293 U.
S. 245 , this Court unanimously held that one attending a
state-maintained university cannot refuse attendance on courses
that offend his religious scruples. That decision is not overruled
today, but is distinguished on the ground that attendance at the
institution for higher education was voluntary, and therefore a
student could not refuse compliance with its conditions, and yet
take advantage of its opportunities. But West Virginia does not
compel the attendance at its public schools of the children here
concerned. West Virginia does not so compel, for it cannot. This
Court denied the right of a state to require its children to attend
public schools. Pierce v. Society of Sisters, 268 U.
S. 510 . As to its public schools, West Virginia imposes
conditions which it deems necessary in the development of future
citizens precisely as California deemed necessary the requirements
that offended the student's conscience in the Hamilton case. The need for higher education and the duty of the state to
provide it as part of a public educational system, are part of the
democratic faith of most of our states. The right to secure such
education in institutions not maintained by public funds is
unquestioned. Page 319 U. S. 657 But the practical opportunities for obtaining what is becoming
in increasing measure the conventional equipment of American youth
may be no less burdensome than that which parents are increasingly
called upon to bear in sending their children to parochial schools
because the education provided by public schools, though supported
by their taxes, does not satisfy their ethical and educational
necessities. I find it impossible, so far as constitutional power
is concerned, to differentiate what was sanctioned in the Hamilton case from what is nullified in this case. And,
for me, it still remains to be explained why the grounds of Mr.
Justice Cardozo's opinion in Hamilton v. Regents, supra, are not sufficient to sustain the flag salute requirement. Such a
requirement, like the requirement in the Hamilton case,

															"is not an interference by the state with the free exercise of
religion when the liberties of the constitution are read in the
light of a century and a half of history during days of peace and
war." 293 U.S.
245 , 293 U. S. 266 .
The religious worshiper,

															"if his liberties were to be thus extended, might refuse to
contribute taxes . . . in furtherance of any other end condemned by
his conscience as irreligious or immoral. The right of private
judgment has never yet been so exalted above the powers and the
compulsion of the agencies of government." Id. at 293 U. S. 268 .

															Parents have the privilege of choosing which schools they wish
their children to attend. And the question here is whether the
state may make certain requirements that seem to it desirable or
important for the proper education of those future citizens who go
to schools maintained by the states, or whether the pupils in those
schools may be relieved from those requirements if they run counter
to the consciences of their parents. Not only have parents the
right to send children to schools of their own choosing, but the
state has no right to bring such schools "under a strict
governmental control" or give

															"affirmative direction Page 319 U. S. 658 concerning the intimate and essential details of such schools,
entrust their control to public officers, and deny both owners and
patrons reasonable choice and discretion in respect of teachers,
curriculum, and textbooks." Farrington v. Tokushige, 273 U.
S. 284 , 273 U. S. 298 .
Why should not the state likewise have constitutional power to make
reasonable provisions for the proper instruction of children in
schools maintained by it?

															When dealing with religious scruples, we are dealing with an
almost numberless variety of doctrines and beliefs entertained with
equal sincerity by the particular groups for which they satisfy
man's needs in his relation to the mysteries of the universe. There
are, in the United States, more than 250 distinctive established
religious denominations. In the State of Pennsylvania, there are
120 of these, and, in West Virginia, as many as 65. But if
religious scruples afford immunity from civic obedience to laws,
they may be invoked by the religious beliefs of any individual even
though he holds no membership in any sect or organized
denomination. Certainly this Court cannot be called upon to
determine what claims of conscience should be recognized, and what
should be rejected as satisfying the "religion" which the
Constitution protects. That would, indeed, resurrect the very
discriminatory treatment of religion which the Constitution sought
forever to forbid. And so, when confronted with the task of
considering the claims of immunity from obedience to a law dealing
with civil affairs because of religious scruples, we cannot
conceive religion more narrowly than in the terms in which Judge
Augustus N. Hand recently characterized it:

															"It is unnecessary to attempt a definition of religion; the
content of the term is found in the history of the human race, and
is incapable of compression into a few words. Religious belief
arises from a sense of the inadequacy of reason Page 319 U. S. 659 as a means of relating the individual to his fellow men and to
his universe. . . . [It] may justly be regarded as a response of
the individual to an inward mentor, call it conscience or God, that
is, for many persons at the present time, the equivalent of what
has always been thought a religious impulse." United States v. Kauten, 133 F.2d 703, 708.

															Consider the controversial issue of compulsory Bible reading in
public schools. The educational policies of the states are in great
conflict over this, and the state courts are divided in their
decisions on the issue whether the requirement of Bible reading
offends constitutional provisions dealing with religious freedom.
The requirement of Bible reading has been justified by various
state courts as an appropriate means of inculcating ethical
precepts and familiarizing pupils with the most lasting expression
of great English literature. Is this Court to overthrow such
variant state educational policies by denying states the right to
entertain such convictions in regard to their school systems
because of a belief that the King James version is, in fact, a
sectarian text to which parents of the Catholic and Jewish faiths
and of some Protestant persuasions may rightly object to having
their children exposed? On the other hand, the religious
consciences of some parents may rebel at the absence of any Bible
reading in the schools. See Washington ex rel. Clithero v.
Showalter, 284 U.S. 573. Or is this Court to enter the old
controversy between science and religion by unduly defining the
limits within which a state may experiment with its school
curricula? The religious consciences of some parents may be
offended by subjecting their children to the Biblical account of
creation, while another state may offend parents by prohibiting a
teaching of biology that contradicts such Biblical account. Compare Scopes v. State, 154 Tenn. 105, 289 S.W. 363. What
of conscientious Page 319 U. S. 660 objections to what is devoutly felt by parents to be the
poisoning of impressionable minds of children by chauvinistic
teaching of history? This is very far from a fanciful suggestion,
for, in the belief of many thoughtful people, nationalism is the
seed-bed of war.

															There are other issues in the offing which admonish us of the
difficulties and complexities that confront states in the duty of
administering their local school systems. All citizens are taxed
for the support of public schools, although this Court has denied
the right of a state to compel all children to go to such schools,
and has recognized the right of parents to send children to
privately maintained schools. Parents who are dissatisfied with the
public schools thus carry a double educational burden. Children who
go to public school enjoy in many states derivative advantages,
such as free textbooks, free lunch, and free transportation in
going to and from school. What of the claims for equality of
treatment of those parents who, because of religious scruples,
cannot send their children to public schools? What of the claim
that, if the right to send children to privately maintained schools
is partly an exercise of religious conviction, to render effective
this right, it should be accompanied by equality of treatment by
the state in supplying free textbooks, free lunch, and free
transportation to children who go to private schools? What of the
claim that such grants are offensive to the cardinal constitutional
doctrine of separation of church and state?

															These questions assume increasing importance in view of the
steady growth of parochial schools, both in number and in
population. I am not borrowing trouble by adumbrating these issues,
nor am I parading horrible examples of the consequences of today's
decision. I am aware that we must decide the case before us, and
not some other case. But that does not mean that a case is
dissociated from the past, and unrelated to the future. We must
decide this Page 319 U. S. 661 case with due regard for what went before and no less regard for
what may come after. Is it really a fair construction of such a
fundamental concept as the right freely to exercise one's religion
that a state cannot choose to require all children who attend
public school to make the same gesture of allegiance to the symbol
of our national life because it may offend the conscience of some
children, but that it may compel all children to attend public
school to listen to the King James version although it may offend
the consciences of their parents? And what of the larger issue of
claiming immunity from obedience to a general civil regulation that
has a reasonable relation to a public purpose within the general
competence of the state? See Pierce v. Society of Sisters, 268 U. S. 510 , 268 U. S. 535 .
Another member of the sect now before us insisted that, in
forbidding her two little girls, aged nine and twelve, to
distribute pamphlets, Oregon infringed her and their freedom of
religion in that the children were engaged in "preaching the gospel
of God's Kingdom." A procedural technicality led to the dismissal
of the case, but the problem remains. McSparran v.
Portland, 318 U.S. 768.

															These questions are not lightly stirred. They touch the most
delicate issues, and their solution challenges the best wisdom of
political and religious statesmen. But it presents awful
possibilities to try to encase the solution of these problems
within the rigid prohibitions of unconstitutionality.

															We are told that a flag salute is a doubtful substitute for
adequate understanding of our institutions. The states that require
such a school exercise do not have to justify it as the only means
for promoting good citizenship in children, but merely as one of
diverse means for accomplishing a worthy end. We may deem it a
foolish measure, but the point is that this Court is not the organ
of government to resolve doubts as to whether it will fulfill its
purpose. Only if there be no doubt that any reasonable Page 319 U. S. 662 mind could entertain can we deny to the states the right to
resolve doubts their way, and not ours.

															That which to the majority may seem essential for the welfare of
the state may offend the consciences of a minority. But, so long as
no inroads are made upon the actual exercise of religion by the
minority, to deny the political power of the majority to enact laws
concerned with civil matters, simply because they may offend the
consciences of a minority, really means that the conscience of a
minority are more sacred and more enshrined in the Constitution
than the consciences of a majority.

															We are told that symbolism is a dramatic but primitive way of
communicating ideas. Symbolism is inescapable. Even the most
sophisticated live by symbols. But it is not for this Court to make
psychological judgments as to the effectiveness of a particular
symbol in inculcating concededly indispensable feelings,
particularly if the state happens to see fit to utilize the symbol
that represents our heritage and our hopes. And surely only
flippancy could be responsible for the suggestion that
constitutional validity of a requirement to salute our flag implies
equal validity of a requirement to salute a dictator. The
significance of a symbol lies in what it represents. To reject the
swastika does not imply rejection of the Cross. And so it bears
repetition to say that it mocks reason and denies our whole history
to find in the allowance of a requirement to salute our flag on
fitting occasions the seeds of sanction for obeisance to a leader.
To deny the power to employ educational symbols is to say that the
state's educational system may not stimulate the imagination
because this may lead to unwise stimulation.

															The right of West Virginia to utilize the flag salute as part of
its educational process is denied because, so it is argued, it
cannot be justified as a means of meeting a "clear and present
danger" to national unity. In passing, it deserves to be noted that
the four cases which unanimously Page 319 U. S. 663 sustained the power of states to utilize such an educational
measure arose and were all decided before the present World War.
But to measure the state's power to make such regulations as are
here resisted by the imminence of national danger is wholly to
misconceive the origin and purpose of the concept of "clear and
present danger." To apply such a test is for the Court to assume,
however unwittingly, a legislative responsibility that does not
belong to it. To talk about "clear and present danger" as the
touchstone of allowable educational policy by the states whenever
school curricula may impinge upon the boundaries of individual
conscience is to take a felicitous phrase out of the context of the
particular situation where it arose and for which it was adapted.
Mr. Justice Holmes used the phrase "clear and present danger" in a
case involving mere speech as a means by which alone to accomplish
sedition in time of war. By that phrase, he meant merely to
indicate that, in view of the protection given to utterance by the
First Amendment, in order that mere utterance may not be
proscribed,

															"the words used are used in such circumstances, and are of such
a nature, as to create a clear and present danger that they will
bring about the substantive evils that Congress has a right to
prevent." Schenck v. United States, 249 U. S.
47 , 249 U. S. 52 .
The "substantive evils" about which he was speaking were inducement
of insubordination in the military and naval forces of the United
States and obstruction of enlistment while the country was at war.
He was not enunciating a formal rule that there can be no
restriction upon speech, and, still less, no compulsion where
conscience balks, unless imminent danger would thereby be wrought
"to our institutions or our government."

															The flag salute exercise has no kinship whatever to the oath
tests so odious in history. For the oath test was one of the
instruments for suppressing heretical beliefs. Page 319 U. S. 664 Saluting the flag suppresses no belief, nor curbs it. Children
and their parents may believe what they please, avow their belief
and practice it. It is not even remotely suggested that the
requirement for saluting the flag involves the slightest
restriction against the fullest opportunity on the part both of the
children and of their parents to disavow, as publicly as they
choose to do so, the meaning that others attach to the gesture of
salute. All channels of affirmative free expression are open to
both children and parents. Had we before us any act of the state
putting the slightest curbs upon such free expression, I should not
lag behind any member of this Court in striking down such an
invasion of the right to freedom of thought and freedom of speech
protected by the Constitution.

															I am fortified in my view of this case by the history of the
flag salute controversy in this Court. Five times has the precise
question now before us been adjudicated. Four times the Court
unanimously found that the requirement of such a school exercise
was not beyond the powers of the states. Indeed, in the first three
cases to come before the Court, the constitutional claim now
sustained was deemed so clearly unmeritorious that this Court
dismissed the appeals for want of a substantial federal question. Leoles v. Landers, 302 U.S. 656; Hearing v. State
Board of Education, 303 U.S. 624; Gabrielli v.
Knickerbocker, 306 U.S. 621. In the fourth case, the judgment
of the district court upholding the state law was summarily
affirmed on the authority of the earlier cases. Johnson v.
Deerfield, 306 U.S. 621. The fifth case, Minersville
District v. Gobitis, 310 U. S. 586 , was
brought here because the decision of the Circuit Court of Appeals
for the Third Circuit ran counter to our rulings. They were
reaffirmed after full consideration, with one Justice
dissenting.

															What may be even more significant than this uniform recognition
of state authority is the fact that every Justice Page 319 U. S. 665 -- thirteen in all -- who has hitherto participated in judging
this matter has at one or more times found no constitutional
infirmity in what is now condemned. Only the two Justices sitting
for the first time on this matter have not heretofore found this
legislation inoffensive to the "liberty" guaranteed by the
Constitution. And among the Justices who sustained this measure
were outstanding judicial leaders in the zealous enforcement of
constitutional safeguards of civil liberties -- men like Chief
Justice Hughes, Mr. Justice Brandeis, and Mr. Justice Cardozo, to
mention only those no longer on the Court.

															One's conception of the Constitution cannot be severed from
one's conception of a judge's function in applying it. The Court
has no reason for existence if it merely reflects the pressures of
the day. Our system is built on the faith that men set apart for
this special function, freed from the influences of immediacy and
from the deflections of worldly ambition, will become able to take
a view of longer range than the period of responsibility entrusted
to Congress and legislatures. We are dealing with matters as to
which legislators and voters have conflicting views. Are we as
judges to impose our strong convictions on where wisdom lies? That
which three years ago had seemed to five successive Courts to lie
within permissible areas of legislation is now outlawed by the
deciding shift of opinion of two Justices. What reason is there to
believe that they or their successors may not have another view a
few years hence? Is that which was deemed to be of so fundamental a
nature as to be written into the Constitution to endure for all
times to be the sport of shifting winds of doctrine? Of course,
judicial opinions, even as to questions of constitutionality, are
not immutable. As has been true in the past, the Court will from
time to time reverse its position. But I believe that never before
these Jehovah's Witnesses Page 319 U. S. 666 cases (except for minor deviations subsequently retraced) has
this Court overruled decisions so as to restrict the powers of
democratic government. Always heretofore it has withdrawn narrow
views of legislative authority so as to authorize what formerly it
had denied.

															In view of this history, it must be plain that what thirteen
Justices found to be within the constitutional authority of a
state, legislators cannot be deemed unreasonable in enacting.
Therefore, in denying to the states what heretofore has received
such impressive judicial sanction, some other tests of
unconstitutionality must surely be guiding the Court than the
absence of a rational justification for the legislation. But I know
of no other test which this Court is authorized to apply in
nullifying legislation.

															In the past, this Court has from time to time set its views of
policy against that embodied in legislation by finding laws in
conflict with what was called the "spirit of the Constitution."
Such undefined destructive power was not conferred on this Court by
the Constitution. Before a duly enacted law can be judicially
nullified, it must be forbidden by some explicit restriction upon
political authority in the Constitution. Equally inadmissible is
the claim to strike down legislation because, to us as individuals,
it seems opposed to the "plan and purpose" of the Constitution.
That is too tempting a basis for finding in one's personal views
the purposes of the Founders.

															The uncontrollable power wielded by this Court brings it very
close to the most sensitive areas of public affairs. As appeal from
legislation to adjudication becomes more frequent, and its
consequences more far-reaching, judicial self-restraint becomes
more, and not less, important, lest we unwarrantably enter social
and political domains wholly outside our concern. I think I
appreciate fully the objections to the law before us. But to deny
that it presents a question upon which men might reasonably Page 319 U. S. 667 differ appears to me to be intolerance. And since men may so
reasonably differ, I deem it beyond my constitutional power to
assert my view of the wisdom of this law against the view of the
State of West Virginia.

															Jefferson's opposition to judicial review has not been accepted
by history, but it still serves as an admonition against confusion
between judicial and political functions. As a rule of judicial
self-restraint, it is still as valid as Lincoln's admonition. For
those who pass laws not only are under duty to pass laws. They are
also under duty to observe the Constitution. And even though
legislation relates to civil liberties, our duty of deference to
those who have the responsibility for making the laws is no less
relevant or less exacting. And this is so especially when we
consider the accidental contingencies by which one man may
determine constitutionality and thereby confine the political power
of the Congress of the United States and the legislatures of
forty-eight states. The attitude of judicial humility which these
considerations enjoin is not an abdication of the judicial
function. It is a due observance of its limits. Moreover, it is to
be borne in mind that, in a question like this, we are not passing
on the proper distribution of political power as between the states
and the central government. We are not discharging the basic
function of this Court as the mediator of powers within the federal
system. To strike down a law like this is to deny a power to all
government.

															The whole Court is conscious that this case reaches ultimate
questions of judicial power and its relation to our scheme of
government. It is appropriate, therefore, to recall an utterance as
wise as any that I know in analyzing what is really involved when
the theory of this Court's function is put to the test of practice.
The analysis is that of James Bradley Thayer:

															". . . there has developed a vast and growing increase of
judicial interference with legislation. This is a very
different Page 319 U. S. 668 state of things from what our fathers contemplated, a century
and more ago, in framing the new system. Seldom, indeed, as they
imagined, under our system, would this great, novel, tremendous
power of the courts be exerted -- would this sacred ark of the
covenant be taken from within the veil. Marshall himself expressed
truly one aspect of the matter, when he said in one of the later
years of his life:"

															"No questions can be brought before a judicial tribunal of
greater delicacy than those which involve the constitutionality of
legislative acts. If they become indispensably necessary to the
case, the court must meet and decide them; but if the case may be
determined on other grounds, a just respect for the legislature
requires that the obligation of its laws should not be
unnecessarily and wantonly assailed."

															"And again, a little earlier than this, he laid down the one
true rule of duty for the courts. When he went to Philadelphia at
the end of September, in 1831, on that painful errand of which I
have spoken, in answering a cordial tribute from the bar of that
city, he remarked that, if he might be permitted to claim for
himself and his associates any part of the kind things they had
said, it would be this, that they had 'never sought to enlarge the
judicial power beyond its proper bounds, nor feared to carry it to
the fullest extent that duty required.'"

															"That is the safe two-fold rule; nor is the first part of it any
whit less important than the second; nay, more; today, it is the
part which most requires to be emphasized. For just here comes in a
consideration of very great weight. Great and, indeed, inestimable
as are the advantages in a popular government of this conservative
influence -- the power of the judiciary to disregard
unconstitutional legislation -- it should be remembered that the
exercise of it, even when unavoidable, is always attended with a
serious evil, namely that the correction of legislative mistakes
comes from the outside, and the people thus lose the political
experience, and the moral education and stimulus that come from
fighting the question out in the ordinary way, and correcting their
own errors. If the decision in Munn v. Illinois and the
' Granger Cases, ' twenty-five years ago, and in the
' Legal Tender Cases ' nearly thirty years Page 319 U. S. 669 ago, had been different, and the legislation there in question,
thought by many to be unconstitutional and by many more to be
ill-advised, had been set aside, we should have been saved some
trouble and some harm. But I venture to think that the good which
came to the country and its people from the vigorous thinking that
had to be done in the political debates that followed, from the
infiltration through every part of the population of sound ideas
and sentiments, from the rousing into activity of opposite
elements, the enlargement of ideas, the strengthening of moral
fibre, and the growth of political experience that came out of it
all -- that all this far more than outweighed any evil which ever
flowed from the refusal of the court to interfere with the work of
the legislature."

															"The tendency of a common and easy resort to this great
function, now lamentably too common, is to dwarf the political
capacity of the people and to deaden its sense of moral
responsibility. It is no light thing to do that."

															"What can be done? It is the courts that can do most to cure the
evil, and the opportunity is a very great one. Let them resolutely
adhere to first principles. Let them consider how narrow is the
function which the constitutions have conferred on them -- the
office merely of deciding litigated cases; how large, therefore, is
the duty intrusted to others, and above all to the legislature. It
is that body which is charged, primarily, with the duty of judging
of the constitutionality of its work. The constitutions generally
give them no authority to call upon a court for advice; they must
decide for themselves, and the courts may never be able to say a
word. Such a body, charged, in every State, with almost all the
legislative power of the people, is entitled to the most entire and
real respect; is entitled, as among all rationally permissible
opinions as to what the constitution allows, to its own choice.
Courts, as has often been said, are not to think of the
legislators, but of the legislature -- the great, continuous body
itself, abstracted from all the transitory individuals who may
happen to hold its power. It is this majestic representative of the
people whose action is in question, a coordinate department of the
government, Page 319 U. S. 670 charged with the greatest functions, and invested, in
contemplation of law, with whatsoever wisdom, virtue, and knowledge
the exercise of such functions requires."

															"To set aside the acts of such a body, representing in its own
field, which is the very highest of all, the ultimate sovereign,
should be a solemn, unusual, and painful act. Something is wrong
when it can ever be other than that. And if it be true that the
holders of legislative power are careless or evil, yet the
constitutional duty of the court remains untouched; it cannot
rightly attempt to protect the people by undertaking a function not
its own. On the other hand, by adhering rigidly to its own duty,
the court will help, as nothing else can, to fix the spot where
responsibility lies, and to bring down on that precise locality the
thunderbolt of popular condemnation. The judiciary, today, in
dealing with the acts of their coordinate legislators, owe to the
country no greater or clearer duty than that of keeping their hands
off these acts wherever it is possible to do it. For that course --
the true course of judicial duty always -- will powerfully help to
bring the people and their representatives to a sense of their own
responsibility. There will still remain to the judiciary an ample
field for the determinations of this remarkable jurisdiction, of
which our American law has so much reason to be proud; a
jurisdiction which has had some of its chief illustrations and its
greatest triumphs, as in Marshall's time, so in ours, while the
courts were refusing to exercise it."

															J. B. Thayer, John Marshall, (1901) 104-110.

															Of course, patriotism cannot be enforced by the flag salute. But
neither can the liberal spirit be enforced by judicial invalidation
of illiberal legislation. Our constant preoccupation with the
constitutionality of legislation, rather than with its wisdom,
tends to preoccupation of the American mind with a false value. The
tendency of focussing attention on constitutionality is to make
constitutionality synonymous with wisdom, to regard a law as all
right if it is constitutional. Such an attitude is a great enemy of
liberalism. Particularly in legislation affecting freedom of
thought and freedom of speech, much which should offend a
free-spirited society is constitutional. Reliance Page 319 U. S. 671 for the most precious interests of civilization, therefore, must
be found outside of their vindication in courts of law. Only a
persistent positive translation of the faith of a free society into
the convictions and habits and action of a community is the
ultimate reliance against unabated temptations to fetter the human
spirit.