Canonizing Barnette

After I finished my draft on The Canonization of the Bill of Rights, I realized that there was a second-order problem that I had not considered.  The paper argues that West Virginia State Bd. of Educ. v. Barnette is a canonical opinion because it completed the process (begun by Franklin Roosevelt) of making the Bill of Rights into a central constitutional text.  But when and how did Barnette become canonical?  The draft just asserts that this is true without explanation.

The answer, I think, is that the school prayer cases in the early 1960s elevated Barnette.  If you look at how Barnette was cited in the 1940s and 1950s, there is nothing special.  Starting in the 1950s, though, you see the choice quotes from Barnette appearing in dissents by Justice Black and Justice Douglas (usually in First Amendment cases, but not entirely).  Then in School Bd. of Abington Township v. Schempp, the 1963 case that held that mandatory Bible reading in public schools was unconstitutional, the Court quoted Barnette at length near the end of the opinion:

“While the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs. Such a contention was effectively answered by Mr. Justice Jackson for the Court in West Virginia Board of Education v. Barnette, 319 U.S. 624, 628, 63 S.Ct. 117,, 1185, 87 L.Ed. 1628 (1943):

‘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 freedom of worship and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’”

Later that year, Louis Jaffe’s Harvard Law Review Foreword focused on school prayer and also discussed Barnette at some length.  The Foreword, then and now, serves an important role in defining constitutional norms.  More broadly, the prohibition on mandatory school prayer is a pillar of the modern view of separation of church and state, and thus Barnette was magnified once that understanding was layered on top of the original opinion.

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2 Responses

  1. Joe says:

    Scalia seems to devalue this ruling a bit when he cites the case it overruled in Oregon v Smith.

  2. Darren Shupe says:

    One wonders how much Barnette will come up in the Proposition 8 case, in which a 52% majority effectively overturned a state court holding.