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Question for the constitutional lawyers..
Is there any way to fight trump's Executive Order? Is there a chance the first amendment is really hangng in the balance?
21 replies
= new reply since forum marked as read
= new reply since forum marked as read
Last edited Thu May 28, 2020, 03:29 PM - Edit history (1)
“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."
An oldie but a goodie:
WEST VIRGINIA STATE BOARD OF EDUCATION et al. v. BARNETTE et al.
{snip}
31
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.
32
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.
33
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 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.
34
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. (19)
35
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.
36
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.
37
Affirmed.
{snip}
{snip}
31
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.
32
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.
33
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 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.
34
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. (19)
35
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.
36
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.
37
Affirmed.
{snip}
Thu Jun 14, 2018: Happy 75th anniversary, West Virginia State Board of Education v. Barnette
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.
West Virginia State Board of Education v. Barnette
Argued March 11, 1943
Decided June 14, 1943
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is a decision by the United States Supreme Court holding that the Free Speech Clause of the First Amendment protects students from being forced to salute the American flag or say the Pledge of Allegiance in public school. The Court's 6–3 decision, delivered by Justice Robert H. Jackson, is remembered for its forceful defense of free speech and constitutional rights generally as being placed "beyond the reach of majorities and officials."
Barnette overruled a 1940 decision on the same issue, Minersville School District v. Gobitis, in which the Court stated that the proper recourse for dissent was to try to change the public school policy democratically. It was a significant court victory won by Jehovah's Witnesses, whose religion forbade them from saluting or pledging to symbols, including symbols of political institutions. However, the Court did not address the effect the compelled salutation and recital ruling had upon their particular religious beliefs but instead ruled that the state did not have the power to compel speech in that manner for anyone. In overruling Gobitis the Court primarily relied on the Free Speech Clause of the First Amendment rather than the Free Exercise Clause.
....
Decision of the Court
The Court held, in a 6-to-3 decision delivered by Justice Jackson, that it was unconstitutional for public schools to compel students to salute the flag. It thus overruled its decision in Minersville School District v. Gobitis (1940), finding that the flag salute was "a form of utterance" and "a primitive but effective means of communicating ideas." The Court wrote that any "compulsory unification of opinion" was doomed to failure and was antithetical to the values set forth in the First Amendment. The Court stated:
The Supreme Court announced its decision on June 14, Flag Day.
....
Argued March 11, 1943
Decided June 14, 1943
West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), is a decision by the United States Supreme Court holding that the Free Speech Clause of the First Amendment protects students from being forced to salute the American flag or say the Pledge of Allegiance in public school. The Court's 6–3 decision, delivered by Justice Robert H. Jackson, is remembered for its forceful defense of free speech and constitutional rights generally as being placed "beyond the reach of majorities and officials."
Barnette overruled a 1940 decision on the same issue, Minersville School District v. Gobitis, in which the Court stated that the proper recourse for dissent was to try to change the public school policy democratically. It was a significant court victory won by Jehovah's Witnesses, whose religion forbade them from saluting or pledging to symbols, including symbols of political institutions. However, the Court did not address the effect the compelled salutation and recital ruling had upon their particular religious beliefs but instead ruled that the state did not have the power to compel speech in that manner for anyone. In overruling Gobitis the Court primarily relied on the Free Speech Clause of the First Amendment rather than the Free Exercise Clause.
....
Decision of the Court
The Court held, in a 6-to-3 decision delivered by Justice Jackson, that it was unconstitutional for public schools to compel students to salute the flag. It thus overruled its decision in Minersville School District v. Gobitis (1940), finding that the flag salute was "a form of utterance" and "a primitive but effective means of communicating ideas." The Court wrote that any "compulsory unification of opinion" was doomed to failure and was antithetical to the values set forth in the First Amendment. The Court stated:
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.
The Supreme Court announced its decision on June 14, Flag Day.
....
Robert H. Jackson
Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was an American attorney and judge who served as an Associate Justice of the United States Supreme Court. He had previously served as United States Solicitor General, and United States Attorney General, and is the only person to have held all three of those offices. Jackson was also notable for his work as the Chief United States Prosecutor at the Nuremberg Trials of Nazi war criminals following World War II.
Jackson was admitted to the bar through a combination of reading law with an established attorney, and attending law school. He is the most recent justice without a law degree to be appointed to the Supreme Court. Jackson is well known for his advice that, "Any lawyer worth his salt will tell the suspect, in no uncertain terms, to make no statement to the police under any circumstances", and for his aphorism describing the Supreme Court, "We are not final because we are infallible, but we are infallible only because we are final." Jackson developed a reputation as one of the best writers on the Supreme Court, and one of the most committed to enforcing due process as protection from overreaching federal agencies.
....
Robert Houghwout Jackson (February 13, 1892 – October 9, 1954) was an American attorney and judge who served as an Associate Justice of the United States Supreme Court. He had previously served as United States Solicitor General, and United States Attorney General, and is the only person to have held all three of those offices. Jackson was also notable for his work as the Chief United States Prosecutor at the Nuremberg Trials of Nazi war criminals following World War II.
Jackson was admitted to the bar through a combination of reading law with an established attorney, and attending law school. He is the most recent justice without a law degree to be appointed to the Supreme Court. Jackson is well known for his advice that, "Any lawyer worth his salt will tell the suspect, in no uncertain terms, to make no statement to the police under any circumstances", and for his aphorism describing the Supreme Court, "We are not final because we are infallible, but we are infallible only because we are final." Jackson developed a reputation as one of the best writers on the Supreme Court, and one of the most committed to enforcing due process as protection from overreaching federal agencies.
....
He turned out pretty well, doncha think?
