The Right To Be Unpatriotic

I feel great pride in being American.  America does not have clean hands with respect to many of its international dealings, and I feel shame and sadness in that, but I believe strongly in many quintessentially American ideals- like diversity, meritocracy, autonomy, and New York pizza.

One of the things that fuels my patriotism is our acceptance of those who express unpatriotic sentiments. My two favorite Supreme Court cases concern the right to be unpatriotic. In honor of the Fourth of July, I will be ruminating upon West Virginia v. Barnette and Wooley v. Maynard.

Barnette held that the right to freedom of conscience prevents public schools from forcing students to recite the pledge of allegiance. According to Justice Jackson, “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.” These words remain true today, although in different contexts. Wooley held, again as a First Amendment value, that New Hampshire cannot force its citizens to display license plates carrying the motto “Live Free or Die.” Of course, the precious irony in both of these cases is that the government was compelling citizens to pledge loyalty to concepts of liberty. But, in the end, actual liberty prevailed.

The fact that burning the flag cannot be specifically outlawed, thanks to Texas v. Johnson, is what gives the flag its power.  Feel free to share with me your favorite Supreme Court cases. (My third favorite is Schmerber v. California, because I enjoy the nuances in self-incrimination law, but that’s not as relevant to the Fourth.)


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4 Responses

  1. AndyK says:

    County of Allegheny v. ACLU, which does for the Establishment Clause something I haven’t seen in the Speech context: notes our Constitution protects “secular liberty” and advances a particular type of secular religion, rather than remaining neutral.

  2. Joe says:

    WEST VIRGINIA STATE BOARD OF ED. v. BARNETTE is up there, Griswold v. Connecticut … the first comment does give an opinion I liked reading each Christmas season but McCreary County v. ACLU is good too, since it reaffirms that the 1A isn’t just some monotheist protection racket.

  3. Nick says:

    Goldberg’s concurrence in Griswold. Warren’s and Douglas’s dissent in Breithaupt (speaking of Schmerber). Texas v. Johnson and Edwards v. Aguillard are personal Brennan favorites.

  4. Jim Maloney says:

    Sometimes courts find that we cannot be compelled to carry the government’s message. But in one area, that of compelling government employees to be “clean-shaven” in order to send a “favorable” message, very few courts (notable among them being the United States District Court for the Northern District of Georgia and the state courts of California) have sided with liberty. As I wrote in 1995, “In Wooley, Barnette was logically extended to the realm of license plates but, perhaps paradoxically, has yet to be applied in the vastly more personal and expressive realm of faces.”

    Suits for the Hirsute: Defending Against America’s Undeclared War on Beards in the Workplace, 63 Fordham Law Review 1203, 1242 (1995).

    Not much has changed since then. Majorities and even sizable minorities can celebrate their “liberty,” but certain very small minorities, such as those who would prefer to wear a beard but are prohibited from doing so (being required to be “clean-shaven” in deference to lingering prejudices that effectively say that the “unshaven” must be “unclean”) have reason to doubt the true extent of the “liberty” so celebrated by the masses.