VOLOKH at mail.law.ucla.edu
Mon Mar 12 10:12:16 PST 2001
I've long thought that Jackson's Barnette opinion is one of the most
overrated in the canon. I can see why people like it: It reached what is
probably the right result, with some stirring rhetoric.
But the reasoning! Or rather, the lack of reasoning. I mentioned
this on the list a couple of years ago, but I thought I'd mention it once
* Doctrine: The Court, to my recollection, never once
acknowledges that K-12 school is rife with compulsory affirmations of lots
of things. "Pop Quiz: What shape is the Earth?" "Flat, ma'am." "Sorry,
you get an F." Or how about "Johnny, tell Suzie that you're sorry for
calling her a little kike." "But, teacher, I'm not sorry, I really do think
that Jews are bad people!" "Never mind, tell her you're sorry or you're
these matters distinguishable? Maybe they are, but the Court never once
even hints at how they might be distinguished. Rather, the rule it seems to
enunciate, without much justification, is: "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." The clear-and-present-danger test? For
restrictions and compulsions of speech by K-12 students, in the classroom as
part of a classroom activity? Really?
Or perhaps an alternative formulation that the Court gave:
"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." Indeed? One doesn't have to be a radical
deconstructionist to look askance at this blithe assertion of "neutrality."
Public education can't be an enemy of the Communist party/faction/creed, or
the Nazi party/faction/creed, or the KKK party/faction/creed? Are public
schools really required to be neutral as to such political issues? Is it
even a good idea for them to be?
To quote Barnette itself, as to both of the above, "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
[students] and would require us to override every [pedagogical device]
thought to weaken [students' untrammeled speech or silence rights]."
* As to rhetoric, consider the following little crescendo:
"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. 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."
Wow! Justice Jackson must really be a fabulous historian
*and* Nostradamus to speak which such confidence. Ultimate futility of
attempts to compel political coherence (by "choos[ing] what doctrine and
program public educational officials shall compel youth to unite in
embracing") is the lesson of *every* such effort? Those who begin coercive
elimination of dissent soon find themselves exterminating dissenters? I'm a
pretty strong fan of free speech protection, but even as to coercive
elimination of dissent imposed by the government acting *as sovereign* --
which I dispaprove of -- the picture is *much* more mixed than Jackson
describes. Lots of countries, including our own, have coercively eliminated
dissent (not, I realize, to their credit) without exterminating dissenters.
And I strongly doubt that *every* such attempt has even been "ultimate[ly]
Certainly I wouldn't say this as to coercion imposed through
the K-12 schools. In the U.S. and elsewhere, K-12 schools *do* try to
coercively indoctrinate students in the accepted ideology, whether it be
democracy, capitalism, racial equality, sexual equality, rationalism,
environmentalism, or what have you. Of course, the coercion is rarely the
rack and thumbscrew, but it's often pretty much on par with the compelled
flag salute, as in the examples I gave above. Even if one thinks that such
K-12 indoctrination is unconstitutional (which I don't) or troubling (which
I do, which is one reason I support school choice), it strikes me as
ridiculous rhetorical excess to say that every such effort will be futile,
or that such attempts lead to extermination. Alternatively, if Jackson was
talking only about harsher attempts, such as threat of prison for adult
dissenters, then where is his rebuttal of the eminently sensible argument
that one can draw a line between laws restricting or requiring speech by
adults and government-run schools restricting or requiring speech by
students (a line that is drawn all the time, then and today)?
It seems to me that, regardless of the merits of its result,
Barnette is a good example of judges' worst tendencies:
(1) to enunciate in ringing tones principles that sound good
but, on even a bit of reflection,
can't possibly be correct at least as they are officially set forth;
(2) to ignore potentially difficult counterarguments based
on fairly close and obvious analogies; and
(3) to support the principles with rhetoric that is based on
wild exaggeration both of the past and the likely future.
Did I mention I wasn't terribly fond of this opinion?
In any event, if we do focus more on craftsmanship,
reasoning, willingness to deal with tough objections, and all the other good
things that were mentioned in the recent discussion, Barnette comes out
looking pretty bad. Or am I missing something here?
Judith Baer writes:
> BEST: Jackson in BARNETTE, Douglas in TERMINIELLO; Ginsburg in U.S. V.
> VIRGINIA. All say what they have to say, clearly and eliquently.
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