Rosenfeld Susan. Encyclopedia of American Historical Documents

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On July 31, 1942, after hearing argument of counsel

and after full consideration of all questions raised, this

Court affirmed the orders of the District Court and denied

petitioners’ applications for leave to file petitions for

habeas corpus. . . .

The following facts appear from the petitions or are

stipulated. Except as noted they are undisputed.

All the petitioners were born in Germany; all have lived in

the United States. All returned to Germany between 1933

and 1941. All except petitioner Haupt are admittedly citi-

zens of the German Reich, with which the United States is

at war. Haupt came to this country with his parents when

he was five years old; it is contended that he became a cit-

izen of the United States by virtue of the naturalization of

his parents during his minority and that he has not since

lost his citizenship. The Government, however, takes the

position that on attaining his majority he elected to main-

tain German allegiance and citizenship or in any case that

he has by his conduct renounced or abandoned his United

States citizenship. For reasons presently to be stated we do

not find it necessary to resolve these contentions. After the

declaration of war between the United States and the Ger-

man Reich, petitioners received training at a sabotage

school near Berlin, Germany, where they were instructed

in the use of explosives and in methods of secret writing.

Thereafter petitioners, with a German citizen, Dasch, pro-

ceeded from Germany to a seaport in Occupied France,

where petitioners Burger, Heinck and Quirin, together

with Dasch, boarded a German submarine which pro-

ceeded across the Atlantic to Amagansett Beach on Long

Island, New York. The four were there landed from the

submarine in the hours of darkness, on or about June 13,

1942, carrying with them a supply of explosives, fuses and

incendiary and timing devices. While landing they wore

German Marine Infantry uniforms or parts of uniforms.

Immediately after landing they buried their uniforms and

the other articles mentioned and proceeded in civilian

dress to New York City.

The remaining four petitioners at the same French

port boarded another German submarine, which carried

them across the Atlantic to Ponte Vedra Beach, Florida.

On or about June 17, 1942, they came ashore during the

hours of darkness wearing caps of the German Marine

Infantry and carrying with them a supply of explosives,

fuses, and incendiary and timing devices. They immedi-

ately buried their caps and the other articles mentioned

and proceeded in civilian dress to Jacksonville, Florida,

and thence to various points in the United States. All were

taken into custody in New York or Chicago by agents of the

Federal Bureau of Investigation. All had received instruc-

tions in Germany from an officer of the German High

Command to destroy war industries and war facilities in

the United States, for which they or their relatives in Ger-

many were to receive salary payments from the German

Government. They also had been paid by the German

Government during their course of training at the sabotage

school and had received substantial sums in United States

currency, which were in their possession when arrested.

The currency had been handed to them by an officer of the

German High Command, who had instructed them to

wear their German uniforms while landing in the United

States.

The President, as President and Commander in Chief

of the Army and Navy, by Order of July 2, 1942, appointed

a Military Commission and directed it to try petitioners for

offenses against the law of war and the Articles of War, and

prescribed regulations for the procedure on the trial and

for review of the record of the trial and of any judgment or

sentence of the Commission. On the same day, by Procla-

mation, the President declared that ‘all persons who are

subjects, citizens or residents of any nation at war with the

United States or who give obedience to or act under the

direction of any such nation, and who during time of war

enter or attempt to enter the United States . . . through

coastal or boundary defenses, and are charged with com-

mitting or attempting or preparing to commit sabotage,

espionage, hostile or warlike acts, or violations of the law

of war, shall be subject to the law of war and to the juris-

diction of military tribunals’.

The Proclamation also stated in terms that all such

persons were denied access to the courts.

Pursuant to direction of the Attorney General, the

Federal Bureau of Investigation surrendered custody of

petitioners to respondent, Provost Marshal of the Military

District of Washington, who was directed by the Secretary

of War to receive and keep them in custody, and who

thereafter held petitioners for trial before the Commis-

sion.

On July 3, 1942, the Judge Advocate General’s

Department of the Army prepared and lodged with the

Commission the following charges against petitioners, sup-

ported by specifications:

1. Violation of the law of war.

2. Violation of Article 81 of the Articles of War, defin-

ing the offense of relieving or attempting to relieve, or cor-

responding with or giving intelligence to, the enemy.

3. Violation of Article 82, defining the offense of

spying.

4. Conspiracy to commit the offenses alleged in

charges 1, 2 and 3.

The Commission met on July 8, 1942, and proceeded

with the trial, which continued in progress while the

causes were pending in this Court. On July 27th, before

petitioners’ applications to the District Court, all the evi-

dence for the prosecution and the defense had been taken

1422 ERA 8: The Great Depression and World War II

by the Commission and the case had been closed except

for arguments of counsel. It is conceded that ever since

petitioners’ arrest the state and federal courts in Florida,

New York, and the District of Columbia, and in the states

in which each of the petitioners was arrested or detained,

have been open and functioning normally.

While it is the usual procedure on an application for a

writ of habeas corpus in the federal courts for the court to

issue the writ and on the return to hear and dispose of the

case, it may without issuing the writ consider and deter-

mine whether the facts alleged by the petition, if proved,

would warrant discharge of the prisoner. Presentation of

the petition for judicial action is the institution of a suit.

Hence denial by the district court of leave to file the peti-

tions in these causes was the judicial determination of a

case or controversy, reviewable on appeal to the Court of

Appeals and reviewable here by certiorari.

Petitioners’ main contention is that the President is

without any statutory or constitutional authority to order

the petitioners to be tried by military tribunal for offenses

with which they are charged; that in consequence they are

entitled to be tried in the civil courts with the safeguards,

including trial by jury, which the Fifth and Sixth Amend-

ments guarantee to all persons charged in such courts with

criminal offenses. In any case it is urged that the Presi-

dent’s Order, in prescribing the procedure of the Commis-

sion and the method for review of its findings and

sentence, and the proceedings of the Commission under

the Order, conflict with Articles of War adopted by

Congress . . . are illegal and void.

The Government challenges each of these proposi-

tions. But regardless of their merits, it also insists that peti-

tioners must be denied access to the courts, both because

they are enemy aliens or have entered our territory as

enemy belligerents, and because the President’s Proclama-

tion undertakes in terms to deny such access to the class of

persons defined by the Proclamation, which aptly

describes the character and conduct of petitioners. It is

urged that if they are enemy aliens or if the Proclamation

has force no court may afford the petitioners a hearing.

But there is certainly nothing in the Proclamation to pre-

clude access to the courts for determining its applicability

to the particular case. And neither the Proclamation nor

the fact that they are enemy aliens forecloses consideration

by the courts of petitioners’ contentions that the Constitu-

tion and laws of the United States constitutionally enacted

forbid their trial by military commission. As announced in

our per curiam opinion we have resolved those questions

by our conclusion that the Commission has jurisdiction to

try the charge preferred against petitioners. There is

therefore no occasion to decide contentions of the parties

unrelated to this issue. We pass at once to the considera-

tion of the basis of the Commission’s authority.

We are not here concerned with any question of the

guilt or innocence of petitioners. Constitutional safeguards

for the protection of all who are charged with offenses are

not to be disregarded in order to inflict merited punish-

ment on some who are guilty. But the detention and trial

of petitioners—ordered by the President in the declared

exercise of his powers as Commander in Chief of the Army

in time of war and of grave public danger—are not to be

set aside by the courts without the clear conviction that

they are in conflict with the Constitution or laws of

Congress constitutionally enacted.

Congress and the President, like the courts, possess no

power not derived from the Constitution. But one of the

objects of the Constitution, as declared by its preamble, is

to ‘provide for the common defence.’ As a means to that

end the Constitution gives to Congress the power to ‘pro-

vide for the common Defence’, [List of specific clauses in

Art. I, 8.]

The Constitution confers on the President the ‘execu-

tive Power,’ Art II [list of sections and clauses in Article II.]

The Constitution thus invests the President as Com-

mander in Chief with the power to wage war which

Congress has declared, and to carry into effect all laws

passed by Congress for the conduct of war and for the gov-

ernment and regulation of the Armed Forces, and all laws

defining and punishing offences against the law of nations,

including those which pertain to the conduct of war.

By the Articles of War, Congress has provided rules

for the government of the Army. The Articles . . . recognize

the ‘military commission’ appointed by military command

as an appropriate tribunal for the trial and punishment of

offenses against the law of war not ordinarily tried by court

martial. . . .

Similarly the Espionage Act of 1917, which authorizes

trial in the district courts of certain offenses that tend to

interfere with the prosecution of war, provides that noth-

ing contained in the act ‘shall be deemed to limit the juris-

diction of the general courts-martial, military commissions,

or naval courts-martial.’

From the very beginning of its history this Court has

recognized and applied the law of war as including that

part of the law of nations which prescribes, for the conduct

of war, the status, rights and duties of enemy nations as

well as of enemy individuals. By the Articles of War,

Congress has explicitly provided, so far as it may constitu-

tionally do so, that military tribunals shall have jurisdiction

to try offenders or offenses against the law of war in appro-

priate cases. Congress . . . has thus exercised its authority

to define and punish offenses against the law of nations by

sanctioning, within constitutional limitations, the jurisdic-

tion of military commissions to try persons for offenses

which, according to the rules and precepts of the law of

nations, and more particularly the law of war, are cogniz-

World War II at Home and Abroad 1423

able by such tribunals. And the President, as Commander

in Chief, by his Proclamation in time of war has invoked

that law. By his Order creating the present Commission he

has undertaken to exercise the authority conferred upon

him by Congress, and also such authority as the Constitu-

tion itself gives the Commander in Chief, to direct the per-

formance of those functions which may constitutionally be

performed by the military arm of the nation in time of war.

An important incident to the conduct of war is the

adoption of measures by the military command not only to

repel and defeat the enemy, but to seize and subject to dis-

ciplinary measures those enemies who in their attempt to

thwart or impede our military effort have violated the law

of war. It is unnecessary for present purposes to determine

to what extent the President as Commander in Chief has

constitutional power to create military commissions with-

out the support of Congressional legislation. For here

Congress has authorized trial of offenses against the law of

war before such commissions. We are concerned only with

the question whether it is within the constitutional power

of the national government to place petitioners upon trial

before a military commission for the offenses with which

they are charged. We must therefore first inquire whether

any of the acts charged is an offense against the law of war

cognizable before a military tribunal, and if so whether the

Constitution prohibits the trial. . . . As we shall show, these

petitioners were charged with an offense against the law of

war which the Constitution does not require to be tried by

jury.

It is no objection that Congress in providing for the

trial of such offenses has not itself undertaken to codify

that branch of international law or to mark its precise

boundaries, or to enumerate or define by statute all the

acts which that law condemns. . . . By the reference in the

15th Article of War to ‘offenders or offenses that . . . by the

law of war may be triable by such military commissions’,

Congress has incorporated by reference, as within the

jurisdiction of military commissions, all offenses which are

defined as such by the law of war and which may constitu-

tionally be included within that jurisdiction. . . .

By universal agreement and practice the law of war

draws a distinction between . . . between those who are

lawful and unlawful combatants. Lawful combatants are

subject to capture and detention as prisoners of war by

opposing military forces. Unlawful combatants are likewise

subject to capture and detention, but in addition they are

subject to trial and punishment by military tribunals for

acts which render their belligerency unlawful. The spy

who secretly and without uniform passes the military lines

of a belligerent in time of war, seeking to gather military

information and communicate it to the enemy, or an

enemy combatant who without uniform comes secretly

through the lines for the purpose of waging war by

destruction of life or property, are familiar examples of bel-

ligerents who are generally deemed not to be entitled to

the status of prisoners of war, but to be offenders against

the law of war subject to trial and punishment by military

tribunals.

Such was the practice of our own military authorities

before the adoption of the Constitution, and during the

Mexican and Civil Wars. . . These and related provisions

have been continued in substance by the Rules of Land

Warfare promulgated by the War Department for the

guidance of the Army. . . .

* * *

By a long course of practical administrative construction

by its military authorities, our Government has likewise

recognized that those who during time of war pass surrep-

titiously from enemy territory into our own, discarding

their uniforms upon entry, for the commission of hostile

acts involving destruction of life or property, have the sta-

tus of unlawful combatants punishable as such by military

commission. . . .

Specification 1 of the First charge is sufficient to

charge all the petitioners with the offense of unlawful bel-

ligerency. . . .

* * *

Citizenship in the United States of an enemy belligerent

does not relieve him from the consequences of a bel-

ligerency which is unlawful because in violation of the law

of war. Citizens who associate themselves with the military

arm of the enemy government, and with its aid, guidance

and direction enter this country bent on hostile acts are

enemy belligerents within the meaning of the Hague Con-

vention and the law of war. It is as an enemy belligerent

that petitioner Haupt is charged with entering the United

States, and unlawful belligerency is the gravamen of the

offense of which he is accused.

Nor are petitioners any the less belligerents if, as they

argue, they have not actually committed or attempted to

commit any act of depredation or entered the theatre or

zone of active military operations. . . . It is that each peti-

tioner, in circumstances which gave him the status of an

enemy belligerent, passed our military and naval lines and

defenses or went behind those lines, in civilian dress and

with hostile purpose. . . .

But petitioners insist that even if the offenses with

which they are charged are offenses against the law of war,

their trial is subject to the requirement of the Fifth

Amendment that no person shall be held to answer for a

capital or otherwise infamous crime unless on a present-

ment or indictment of a grand jury, and that such trials. . .

must be by jury in a civil court. . . .

1424 ERA 8: The Great Depression and World War II

. . . Military tribunals . . . are not courts in the sense of

the Judiciary Article, and which in the natural course of

events are usually called upon to function under conditions

precluding resort to such procedures. . . .

* * *

. . . We must conclude that §2 of Article III and the Fifth

and Sixth Amendments cannot be taken to have extended

the right to demand a jury to trials by military commission,

or to have required that offenses against the law of war not

triable by jury at common law be tried only in the civil

courts.

* * *

Petitioners, and especially petitioner Haupt, stress the

pronouncement of this Court in the Milligan case [71 U.S.

2], that the law of war ‘can never be applied to citizens in

states which have upheld the authority of the government,

and where the courts are open and their process unob-

structed.’ Elsewhere in its opinion, the Court was at pains

to point out that Milligan . . . was a non-belligerent, not

subject to the law of war. . . .

. . . It is enough that petitioners here, upon the con-

ceded facts, were plainly within those boundaries, and

were held in good faith for trial by military commission,

charged with being enemies who, with the purpose of

destroying war materials and utilities, entered or after

entry remained in our territory without uniform—an

offense against the law of war. We hold only that those par-

ticular acts constitute an offense against the law of war

which the Constitution authorizes to be tried by military

commission.

There remains the contention that the President’s

Order of July 2, 1942, so far as it lays down the procedure

to be followed on the trial before the Commission and on

the review of its findings and sentence, and the procedure

in fact followed by the Commission, are in conflict with

Articles of War. Petitioners argue that their trial by the

Commission, by a procedure which Congress has prohib-

ited would invalidate any conviction which could be

obtained against them and renders their detention for

trial likewise unlawful; that the President’s Order pre-

scribes such an unlawful procedure; and that the secrecy

surrounding the trial and all proceedings before the Com-

mission, as well as any review of the decision, will pre-

clude a later opportunity to test the lawfulness of the

detention.

Accordingly, we conclude that Charge I, on which

petitioners were detained for trial by the Military Com-

mission, alleged an offense which the President is autho-

rized to order tried by military commission; that his Order

convening the Commission was a lawful order and that the

Commission was lawfully constituted; that the petitioners

were held in lawful custody and did not show cause for

their discharge. It follows that the orders of the District

Court should be affirmed, and that leave to file petitions

for habeas corpus in this Court should be denied.

* * *

Source:

U.S. Reports, The University of Chicago. D’Angelo Law Library.

Available on-line. URL: www.law.uchicago.edu.tribunals/

docs/usvcox.pdf. Accessed January 2004.

West Virginia State Board of Education v.

Barnette (319 U.S. 624), 1943

U.S. Supreme Court decision issued on June 14, 1943, while

Americans were fighting in World War II, invalidating—as a

violation of First Amendment rights—a state requirement that

public school children salute and pledge allegiance to the flag.

The majority opinion by Justice Robert Jackson is one of the

most spirited defenses of the First Amendment in the history of

the Supreme Court. Similarly, the dissenting opinion of Justice

Felix Frankfurter is one of the most personal. It also contains

an affirmation of his theory of strict constitutional interpreta-

tion and what is termed “original intent,” trying to discern how

the drafters of the Constitution would have interpreted the sit-

uation at question.

Before U.S. entry into the war,

Minersville School District

v. Gobitis,

(310 U.S. 586), had tested the constitutionality of a

similar law passed by the Pennsylvania legislature. The peti-

tioner, a member of the Jehovah’s Witnesses and the parent of

a student, objected to the Pledge of Allegiance on religious

grounds. Like Walter Barnette, also a Jehovah’s Witness, he

challenged the constitutionality of the law as a violation of his

First Amendment rights. The Supreme Court, however, de-

cided by a vote of 8 to 1, with only Associate Justice Stone dis-

senting, that the state law should be upheld. Associate Justice

Frankfurter, writing for the majority, held that in light of the

impending world war, it was important for a “unifying senti-

ment” to be instilled in the children of the country and that for

the Supreme Court to question the means by which that senti-

ment should be instilled “would in effect make us the school

board for the country.” Interestingly, the salute at that time was

not placing the hand over the heart but holding out the right

arm in a form similar to that used by the Nazis.

The West Virginia regulation stated that children who

refused to salute could be expelled and their parents fined. In

its 6-3 decision, the Supreme Court ruled that the state cannot

compel students to declare a belief, stating that “no official . . .

can prescribe what shall be orthodox in politics, nationalism,

religion, or other matters of opinion or force citizens to con-

fess by word or act their faith therein.”

World War II at Home and Abroad 1425

________________________

_______________________

Mr. Justice Jackson delivered the opinion of the Court.

Following the decision by this Court on June 3, 1940,

in Minersville School District v. Gobitis. . ., the West Vir-

ginia legislature amended its statutes to require all schools

therein to conduct courses of instruction in history, civics,

and in the Constitutions of the United States and of the

State “for the purpose of teaching, fostering and perpetu-

ating the ideals, principles and spirit of Americanism, and

increasing the knowledge of the organization and machin-

ery of the government.” . . .

The Board of Education on January 9, 1942, adopted

a resolution containing recitals taken largely from the

Court’s Gobitis opinion and ordering that the salute to the

flag become “a regular part of the program of activities in

the public schools,” that all teachers and pupils “shall be

required to participate in the salute honoring the Nation

represented by the Flag; provided, however, that refusal to

salute the Flag be regarded as an Act of insubordination,

and shall be dealt with accordingly.”

The resolution originally required the “commonly

accepted salute to the Flag” which it defined. Objections

to the salute as “being too much like Hitler’s” were raised

by the Parent and Teachers Association, the Boy and Girl

Scouts, the Red Cross, and the Federation of Women’s

Clubs. Some modification appears to have been made in

deference to these objections, but no concession was made

to Jehovah’s Witnesses. What is now required is the “stiff-

arm” salute, the saluter to keep the right hand raised with

palm turned up while the following is repeated: “I pledge

allegiance to the Flag of the United States of America and

to the Republic for which it stands; one Nation, indivisible,

with liberty and justice for all.”

Failure to conform is “insubordination” dealt with by

expulsion. Readmission is denied by statute until compli-

ance. Meanwhile the expelled child is “unlawfully absent”

and may be proceeded against as a delinquent. His parents

or guardians are liable to prosecution, and if convicted are

subject to fine not exceeding $50 and jail term not exceed-

ing thirty days.

Appellees, citizens of the United States and of West

Virginia, brought suit in the United States District Court

for themselves and others similarly situated asking its

injunction to restrain enforcement of these laws and regu-

lation against Jehovah’s Witnesses. The Witnesses are an

unincorporated body teaching that the obligation imposed

by law of God is superior to that of laws enacted by tem-

poral government. Their religious beliefs include a literal

version of Exodus, Chapter 20, verses 4 and 5, which says:

“Thou shalt not make unto thee any graven image, or any

likeness of anything that is in heaven above, or that is in

the earth beneath, or that is in the water under the earth;

thou shalt not bow down thyself to them nor serve them.”

They consider that the flag is an “image” within this com-

mand. For this reason they refuse to salute it.

Children of this faith have been expelled from school

and are threatened with exclusion for no other cause. Offi-

cials threaten to send them to reformatories maintained

for criminally inclined juveniles. Parents of such children

have been prosecuted and are threatened with prosecu-

tions for causing delinquency.

The Board of Education moved to dismiss the com-

plaint setting forth these facts and alleging that the law and

regulations are an unconstitutional denial of religious free-

dom, and of freedom of speech, and are invalid under the

“due process” and “equal protection” clauses of the Four-

teenth Amendment to the Federal Constitution. The

cause was submitted on the pleadings to a District Court

of three judges. It restrained enforcement as to the plain-

tiffs and those of that class. The Board of Education

brought the case here by direct appeal.

This case calls upon us to reconsider a precedent deci-

sion, at the Court throughout its history often has been

required to do. Before turning to the Gobitis case, how-

ever, it is desirable to notice certain characteristics by

which this controversy is distinguished.

. . . The refusal of these persons to participate in the

ceremony does not interfere with or deny rights of others

to do so. Nor is there any question in this case that their

behavior is peaceable and orderly. The sole conflict is

between authority and rights of the individual. . . .

[1] As the present Chief Justice said in dissent in the

Gobitis case, the State may “require teaching by instruc-

tion and study of all in our history and in the structure and

organization of our government, including the guaranties

of civil liberty which tend to inspire patriotism and love of

country.”. . . Here, however, we are dealing with a com-

pulsion of students to declare a belief. They are not merely

made acquainted with the flag salute so that they may be

informed as to what it is or even what it means. The issue

here is whether this slow and easily neglected route to

aroused loyalties constitutionally may be short- cut by sub-

stituting a compulsory salute and slogan. . . .

There is no doubt that, in connection with the

pledges, the flag salute is a form of utterance. Symbolism

is a primitive but effective way of communicating ideas.

The use of an emblem or flag to symbolize some system,

idea, institution, or personality, is a short cut from mind to

mind. Causes and nations, political parties, lodges and

ecclesiastical groups seek to knit the loyalty of their fol-

lowings to a flag or banner, a color or design. The State

announces rank, function, and authority through crowns

and maces, uniforms and black robes; the church speaks

1426 ERA 8: The Great Depression and World War II

through the Cross, the Crucifix, the altar and shrine, and

clerical raiment. Symbols of State often convey political

ideas just as religious symbols come to convey theological

ones. Associated with many of these symbols are appropri-

ate gestures of acceptance or respect: a salute, a bowed or

bared head, a bended knee. A person gets from a symbol

the meaning he puts into it, and what is one man’s comfort

and inspiration is another’s jest and scorn.

. . . Here it is the State that employs a flag as a symbol

of adherence to government as presently organized. It

requires the individual to communicate by word and sign

his acceptance of the political ideas it thus bespeaks.

Objection to this form of communication when coerced is

an old one, well known to the framers of the Bill of Rights.

. . . It is now a commonplace the censorship or sup-

pression of expression of opinion is tolerated by our Con-

stitution only when the expression presents a clear and

present danger of action of a kind that 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. But here the

power of compulsion is invoked without any allegation that

remaining passive during a flag salute ritual creates a clear

and present danger that would justify an effort even to

muffle expression. To sustain the compulsory flag salute

we are required to say that a Bill of Rights which guards

the individual’s right to speak his own mind, left it open to

public authorities to compel him to utter what is not in his

mind.

Whether the First Amendment to the Constitution

will permit officials to order observance of ritual of this

nature does not depend upon whether as a voluntary exer-

cise we would think it to be good, bad or merely innocu-

ous. Any credo of nationalism is likely to include what

some disapprove or to omit what others think essential,

and to give off different overtones as it takes on different

accents or interpretations. If official power exists to coerce

acceptance of any patriotic creed, what it shall contain can-

not be decided by courts, but must be largely discretionary

with the ordaining authority, whose power to prescribe

would no doubt include power to amend. Hence validity of

the asserted power to force an American citizen publicly to

profess any statement of belief or to engage in any cere-

mony of assent to one presents questions of power that

must be considered independently of any idea we may

have as to the utility of the ceremony in question.

Nor does the issue as we see it turn on one’s posses-

sion of particular religious views or the sincerity with

which they are held. . . . Many citizens who do not share

these religious views hold such a compulsory rite to

infringe constitutional liberty of the individual. It is not

necessary to inquire whether non-conformist beliefs will

exempt from the duty to salute unless we first find power

to make the salute a legal duty.

The Gobitis decision, however, assumed, as did the

argument in that case and in this, that power exists in the

State to impose the flag salute discipline upon school chil-

dren in general. . . . The question which underlies the flag

salute controversy is whether such a ceremony so touching

matters of opinion and political attitude may be imposed

upon the individual by official authority under powers

committed to any political organization under our Consti-

tution. We examine rather than assume existence of this

power and, against this broader definition of issues in this

case, re-examine specific grounds assigned for the Gobitis

decision.

* * *

Government of limited power need not be anemic govern-

ment. Assurance that rights are secure tends to diminish

fear and jealousy of strong government, and by making us

feel safe to live under it makes for its better support. With-

out promise of a limiting Bill of Rights it is doubtful if our

Constitution could have mustered enough strength to

enable its ratification. To enforce those rights today is not

to choose weak government over strong government. It is

only to adhere as a means of strength to individual free-

dom of mind in preference to officially disciplined unifor-

mity for which history indicates a disappointing and

disastrous end.

The subject now before us exemplifies this principle.

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. . . .

3. . . . The very purpose of a Bill of Rights was to with-

draw certain subjects from the vicissitudes of political con-

troversy, 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 life, liberty, and prop-

erty, to free speech, a free press, freedom of worship and

assembly, and other fundamental rights may not be sub-

mitted to vote; they depend on the outcome of no elec-

tions.

* * *

4. Lastly, and this is the very heart of the Gobitis opin-

ion, it reasons that “National unity is the basis of national

security,” that the authorities have “the right to select

appropriate means for its attainment,” and hence reaches

the conclusion that such compulsory measures toward

“national unity” are constitutional. . . . Upon the verity of

this assumption depends our answer in this case.

National unity as an end which officials may foster by

persuasion and example is not in question. The problem is

World War II at Home and Abroad 1427

whether under our Constitution compulsion as here

employed is a permissible means for its achievement.

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 neces-

sary 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 to our present totali-

tarian enemies. Those who begin coercive elimination of

dissent soon find themselves exterminating dissenters.

Compulsory unification of opinion achieves only the una-

nimity of the graveyard.

[8] 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 mys-

ticism 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 con-

sent. Authority here is to be controlled by public opinion,

not public opinion by authority.

[9] The case is made difficult not because the princi-

ples 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 intel-

lectually and spiritually diverse or even contrary will disin-

tegrate 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

States 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.

[10] If there is any fixed star in our constitutional con-

stellation, 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 circum-

stances which permit an exception, they do not now occur

to us.

[11] We think the action of the local authorities in

compelling the flag salute and pledge transcends constitu-

tional 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 reverse from all official

control.

The decision of this Court in Minersville School Dis-

trict v. Gobitis and the holdings of those few per curiam

decisions which preceded and foreshadowed it are over-

ruled, and the judgment enjoining enforcement of the

West Virginia Regulation is affirmed.

Affirmed.

* * *

Mr. Justice Frankfurter, dissenting.

One who belongs to the most vilified and persecuted

minority in history is not likely to be insensible to the free-

doms guaranteed by our Constitution. Were my purely

personal attitude relevant I should wholeheartedly associ-

ate myself with the general libertarian views in the Court’s

opinion, representing as they do the thought and action of

a lifetime. But as judges we are neither Jew nor Gentile,

neither Catholic nor agnostic. We owe equal attachment to

the Constitution and are equally bound by our judicial

obligations whether we derive our citizenship from the

earliest or the latest immigrants to these shores. As a mem-

ber of this Court I am not justified in writing my private

notions of policy into the Constitution, no matter how

deeply I may cherish them or how mischievous I may

deem their disregard. The duty of a judge who must

decide which of two claims before the Court shall prevail,

that of a State to enact and enforce laws within its general

competence or that of an individual to refuse obedience

because of the demands of his conscience, is not that of the

ordinary person. It can never be emphasized too much

that one’s own opinion about the wisdom or evil of a law

should be excluded altogether when one is doing one’s

duty on the bench. The only opinion of our own even look-

ing in that direction that is material is our opinion whether

legislators could in reason have enacted such a law. In the

light of all the circumstances, including the history of this

question in this Court, it would require more daring than

I possess to deny that reasonable legislators could have

1428 ERA 8: The Great Depression and World War II

taken the action which is before us for review. Most unwill-

ingly, therefore, I must differ from my brethren with

regard to legislation like this. I cannot bring my mind to

believe that the “liberty” secured by the Due Process

Clause gives this Court authority to deny to the State

of West Virginia the attainment of that which we all recog-

nize as a legitimate legislative end, namely, the promotion

of good citizenship, by employment of the means here

chosen.

Not so long ago we were admonished that “the only

check upon our own exercise of power is our own sense of

self-restraint. For the removal of unwise laws from the

statute books appeal lies, not to the courts, but to the bal-

lot and to the processes of democratic government.” . . .We

have been told that generalities do not decide concrete

cases. But the intensity with which a general principle is

held may determine a particular issue, and whether we put

first things first may decide a specific controversy.

The admonition that judicial self-restraint alone limits

arbitrary exercise of our authority is relevant every time we

are asked to nullify legislation. The Constitution does not

give us greater veto power when dealing with one phase of

“liberty” than with another, or when dealing with grade

school regulations than with college regulations that

offend conscience. . . . Judicial self-restraint is equally nec-

essary whenever an exercise of political or legislative

power is challenged. There is no warrant in the constitu-

tional basis of this Court’s authority for attributing differ-

ent roles to it depending upon the nature of the challenge

to the legislation. Our power does not vary according to

the particular provision of the Bill of Rights which is

invoked. The right not to have property taken without just

compensation has, so far as the scope of judicial power is

concerned, the same constitutional dignity as the right to

be protected against unreasonable searches and seizures,

and the latter has no less claim than freedom of the press

or freedom of speech or religious freedom. In no instance

is this Court the primary protector of the particular liberty

that is invoked. This Court has recognized, what hardly

could be denied, that all the provisions of the first ten

Amendments are “specific” prohibitions. . . . But each spe-

cific Amendment, in so far as embraced within the Four-

teenth Amendment, must be equally respected, and the

function of this Court does not differ in passing on the con-

stitutionality of legislation challenged under different

Amendments.

When Mr. Justice Holmes, speaking for this Court,

wrote that “it must be remembered that legislature are

ultimate guardians of the liberties and welfare of the peo-

ple in quite as great a degree as the courts”. . . he went to

the very essence of our constitutional system and the

democratic conception of our society. . . . He was stating

the comprehensive judicial duty and role of this Court in

our constitutional scheme whenever legislation is sought to

be nullified on any ground, namely, that responsibility for

legislation lies with legislatures, answerable as they are

directly to the people, and this Court’s only and very nar-

row function is to determine whether within the broad

grant of authority vested in legislatures they have exercised

a judgment for which reasonable justification can be

offered.

The framers of the federal Constitution might have

chosen to assign an active share in the process of legisla-

tion to this Court. . . . But the framers of the Constitution

denied such legislative powers to the federal judiciary.

They chose instead to insulate the judiciary from the leg-

islative function. They did not grant to this Court supervi-

sion over legislation.

* * *

The precise scope of the question before us defines the

limits of the constitutional power that is in issue. The State

of West Virginia requires all pupils to share in the salute to

the flag as part of school training in citizenship. The pre-

sent action is one to enjoin the enforcement of this

requirement by those in school attendance. We have not

before us any attempt by the State to punish disobedient

children or visit penal consequences on their parents. All

that is in question is the right of the state to compel par-

ticipation in this exercise by those who choose to attend

the public schools.

We are not reviewing merely the action of a local

school board. The flag salute requirement in this case

comes before us with the full authority of the State of West

Virginia. We are in fact passing judgment on “the power of

the State as a whole”. . . .To suggest that we are here con-

cerned with the heedless action of some village tyrants is

to distort the augustness of the constitutional issue and the

reach of the consequences of our decision.

Under our constitutional system the legislature is

charged solely with civil concerns of society. If the avowed

or intrinsic legislative purpose is either to promote or to

discourage some religious community or creed, it is clearly

within the constitutional restrictions imposed on legisla-

tures and cannot stand. But it by no means follows that

legislative power is wanting whenever a general non-

discriminatory civil regulation in fact touches conscien-

tious scruples or religious beliefs of an individual or a

group. Regard for such scruples or beliefs undoubtedly

presents one of the most reasonable claims for the exertion

of legislative accommodation. It is, of course, beyond our

power to rewrite the state’s requirement, by providing

exemptions for those who do not wish to participate in the

flag salute or by making some other accommodations to

World War II at Home and Abroad 1429

meet their scruples. That wisdom might suggest the mak-

ing of such accommodations and that school administra-

tion would not find it too difficult to make them and yet

maintain the ceremony for those not refusing to conform,

is outside our province to suggest. Tact, respect, and gen-

erosity toward variant views will always commend them-

selves to those charged with the duties of legislation so as

to achieve a maximum of good will and to require a mini-

mum of unwilling submission to a general law. But the real

question is, who is to make such accommodations, the

courts or the legislature?

This is no dry, technical matter. It cuts deep into one’s

conception of the democratic process. . . . A court . . . can

only say “This or that law is void.” It cannot modify or qual-

ify, it cannot make exceptions to a general requirement.

And it strikes down not merely for a day. . . . When we are

dealing with the Constitution of the United States, and

more particularly with the great safeguards of the Bill of

Rights, we are dealing with principles of liberty and justice

“so rooted in the traditions and conscience of our people

as to be ranked as fundamental”—something without

which “a fair and enlightened system of justice would be

impossible”. . .We have been told that such compulsions

[conscientious scruples] override religious scruples only as

to major concerns of the state. But the determination of

what is major and what is minor itself raises questions of

policy. . . . Judges should be very diffident in setting their

judgment against that of a state in determining what is and

what is not a major concern, what means are appropriate

to proper ends, and what is the total social cost in striking

the balance of imponderables.

What one can say with assurance is that the history out

of which grew constitutional provisions for religious equal-

ity and the writings of the great exponents of religious

freedom—Jefferson, Madison, John Adams, Benjamin

Franklin—are totally wanting in justification for a claim by

dissidents of exceptional immunity from civic measures of

general applicability, measures not in fact disguised

assaults upon such dissident views. The great leaders of the

American Revolution were determined to remove political

support from every religious establishment. . . . But Jeffer-

son and the others also knew that minorities may disrupt

society. It never would have occurred to them to write into

the Constitution the subordination of the general civil

authority of the state to sectarian scruples.

The constitutional protection of religious freedom ter-

minated disabilities, it did not create new privileges. It

gave religious equality, not civil immunity. . . .

* * *

The essence of the religious freedom guaranteed by

our Constitution is therefore this: no religion shall

either receive the state’s support or incur its hostility.

Religion is outside the sphere of political government

. . . . The validity of secular laws cannot be measured by

their conformity to religious doctrines. It is only in a

theocratic state that ecclesiastical doctrines measure

legal right or wrong.

An act compelling profession of allegiance to a reli-

gion, no matter how subtly or tenuously promoted, is bad.

But an act promoting good citizenship and national alle-

giance is within the domain of governmental authority and

is therefore to be judged by the same considerations of

power and of constitutionality as those involved in the

many claims of immunity from civil obedience because of

religious scruples.

That claims are pressed on behalf of sincere religious

convictions does not of itself establish their constitutional

validity. Nor does waving the banner of religious freedom

relieve us from examining into the power we are asked to

deny the states. Otherwise the doctrine of separation of

church and state, so cardinal in the history of this nation

and for the liberty of our people, would mean not the dis-

establishment of a state church but the establishment of all

churches and of all religious groups.

* * *

That which to the majority may seem essential for the wel-

fare of the state may offend the consciences of a minority.

But, so long as no inroads are made upon the actual exer-

cise of religion by the minority, to deny the political power

of the majority to enact laws concerned with civil matters,

simply because they may offend the consciences of a

minority, really means that the consciences of a minority

are more sacred and more enshrined in the Constitution

that the consciences of a majority.

We are told that symbolism is a dramatic but primitive

way of communicating ideas. Symbolism is inescapable.

Even the most sophisticated live by symbols. But it is not

for this Court to make psychological judgments as to the

effectiveness of a particular symbol in inculcating conced-

edly indispensable feelings, particularly if the state hap-

pens to see fit to utilize the symbol that represents our

heritage and our hopes. . . .

* * *

Of course patriotism cannot be enforced by the flag salute.

But neither can the liberal spirit be enforced by judicial

invalidation of illiberal legislation. Our constant preoccu-

pation with the constitutionality of legislation rather than

with its wisdom tends to preoccupation of the American

mind with a false value. The tendency of focusing attention

on constitutionality is to make constitutionality synony-

mous with wisdom, to regard a law as all right if it is con-

1430 ERA 8: The Great Depression and World War II

stitutional. Such an attitude is a great enemy of liberalism.

Particularly in legislation affecting freedom of thought and

freedom of speech much which should offend a free-spir-

ited society is constitutional. Reliance for the most pre-

cious interests of civilization, therefore, must be found

outside of their vindication in courts of law. Only a persis-

tent positive translation of the faith of a free society into

the convictions and habits and actions of a community is

the ultimate reliance against unabated temptations to fet-

ter the human spirit.

Source:

Supreme Court Reporter, Vol. 63, pp. 1,178–1,200.

Smith-Connally Anti-Strike Act, 1943

U.S. legislation sponsored by Representative Howard W.

Smith of Virginia and Senator Thomas T. Connally of Texas and

enacted on June 25, 1943, that authorized the president to

seize any plant or industry in which a labor dispute might

interfere with war production. Anyone promoting a strike after

such seizure was subject to criminal prosecution, and unions

were liable to damage suits if they failed to give 30 days’

notice of intention to strike in war industries. The act was

opposed by organized labor and was vetoed by President

Franklin D. Roosevelt, but Congress overrode the veto. The

president used the act in December 1943 to take temporary

possession of U.S. railroads threatened by a strike. The law

expired in 1947.

________________________

_______________________

An Act

Relating to the use and operation by the United States of

certain plants, mines, and facilities in the prosecution of

the war, and preventing strikes, lock-outs, and stoppages of

production, and for other purposes.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assem-

bled, That this Act may be cited as the “War Labor

Disputes Act” . . .

Power of President to Take Possession of Plants

Sec. 3. Section 9 of the Selective Training and Service Act

of 1940 is hereby amended by adding at the end thereof

the following new paragraph:

“The power of the President under the foregoing pro-

visions of this section to take immediate possession of any

plant upon a failure to comply with any such provisions,

and the authority granted by this section for the use and

operation by the United States or in its interests of any

plant of which possession is so taken, shall also apply as

hereinafter provided to any plant, mine, or facility

equipped for the manufacture, production, or mining of

any articles or materials which may be required for the war

effort or which may be useful in connection therewith.

Such power and authority may be exercised by the Presi-

dent through such department or agency of the Govern-

ment as he may designate, and may be exercised with

respect to any such plant, mine, or facility whenever the

President finds, after investigation, and proclaims that

there is an interruption of the operation of such plant,

mine, or facility as a result of a strike or other labor distur-

bance, that the war effort will be unduly impeded or

delayed by such interruption, and that the exercise of such

power and authority is necessary to insure the operation of

such plant, mine, or facility in the interest of the war effort:

Provided, That whenever any such plant, mine, or facility

has been or is hereafter so taken by reason of a strike, lock-

out, threatened strike, threatened lock-out, work stoppage,

or other cause, such plant, mine, or facility shall be

returned to the owners thereof as soon as practicable, but

in no event more than sixty days after the restoration of the

productive efficiency thereof prevailing prior to the taking

of possession thereof: Provided further, That possession of

any plant, mine, or facility shall not be taken under author-

ity of this section after the termination of hostilities in the

present war, as proclaimed by the President, or after the

termination of the War Labor Disputes Act; and the

authority to operate any such plant, mine, or facility under

the provisions of this section shall terminate at the end of

six months after the termination of such hostilities as so

proclaimed.” . . .

Interference with Government Operation of Plants

Sec. 6. (a) Whenever any plant, mine, or facility is in the

possession of the United States, it shall be unlawful for any

person (1) to coerce, instigate, induce, conspire with, or

encourage any person, to interfere, by lock-out, strike,

slow-down, or other interruption, with the operation of

such plant, mine, or facility, or (2) to aid any such lock-out,

strike, slow-down, or other interruption interfering with

the operation of such plant, mine, or facility by giving

direction or guidance in the conduct of such interruption,

or by providing funds for the conduct or direction thereof

or for the payment of strike, unemployment, or other ben-

efits to those participating therein. No individual shall be

deemed to have violated the provisions of this section by

reason only of his having ceased work or having refused to

continue to work or to accept employment.

(b) Any person who willfully violates any provision of

this section shall be subject to a fine of not more than

$5,000, or to imprisonment for not more than one year, or

both.

World War II at Home and Abroad 1431