Barnette’s Robert H. Jackson: The Constitution Protects Individual Conscience When the Cost to Society Is Not Too High

This essay, part of a symposium on Linda McClain’s and James Fleming’s book “WHAT SHALL BE ORTHODOX” IN POLARIZED TIMES, is about Justice Robert H. Jackson’s opinion for the Supreme Court in West Virginia State Board of Education v. Barnette. Justice Jackson explained in Barnette how the U.S. Constitution protects schoolchildren conscientious objectors from being compelled by government to salute and to pledge allegiance to the U.S. flag. But Barnette was not, as the Supreme Court recently seems to read it, an absolutist decision constitutionalizing individual conscience claims to be exempt from societal, general, significant interests in compelling speech. Barnette was about the individual in society, and how the Constitution strikes a balance between competing individual and societal interests.

Much of Barnette’s balance-striking in favor of individual difference correlates with aspects of Jackson’s own life. Seeing this and focusing closely on Jackson’s actual Barnette words illuminates that the decision was pragmatic, concerned with society as much as or maybe more than it was concerned with the Jehovah’s Witnesses who objected to compelled flag salutes and pledges of allegiance.