Opinion: The Bill of Rights guarantees fundamental freedoms. Is it waning?

If Americans generally abandon their allegiance to the paramount freedoms of the First Amendment, there will be little the Supreme Court can do to save us from ourselves

Billy Gobitis was not a troublemaker, but he was in trouble at school. Big trouble. Along with his older sister, Lillian, age 12, 10-year-old Billy had been expelled. The year was 1935; the place was Minersville, Pennsylvania; and the Gobitis siblings, in defiance of a school district requirement, had refused to salute the American flag. Other students threw rocks at them. Billy’s teacher tried to physically force his arm into the salute position (in those days, this meant extending the arm upward at a forty-five-degree angle with the palm turned up, a gesture with eerie similarity to the Roman salute, then popular in Fascist Italy and Nazi Germany).

Billy was a respectful boy, and he felt he should explain his actions in a letter to the schoolboard. “I am a true follower of Christ,” the young Jehovah’s Witness explained, scrawling out a determined, if somewhat uneven schoolboy cursive. “I do not salute the flag, not because I do not love my country, but I love my country and I love God more and I must obey his commandments.” One of those commandments, Billy believed, forbade worshiping idols, and he thought the flag salute fell afoul of that command.

Billy’s family suffered for their convictions. The community boycotted their grocery store. Some family members were physically attacked. The children were placed in a private school, which the parents could barely afford. To offset the cost of private tuition, Billy’s father brought a lawsuit against the Minersville School District. He took his case all the way to the Supreme Court.

And lost badly. By a vote of 8 to 1, the justices affirmed the school district’s decisions. By then it was 1940, and Billy Gobitis was 15. Europe was at war, and America was in turmoil. Requiring students to salute the flag and recite the Pledge of Allegiance was the norm at schools across the country. The court explained that such practices helped “to evoke that unifying element without which there can ultimately be no liberties, civil or religious.” Exempting the Gobitis children “might cast doubts in the minds of the other children which would themselves weaken the effect of the exercise.” Besides, the school district’s countervailing interest was of the highest order: “National unity,” the justices observed, “is the basis of national security.” 

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As for the Gobitis’ claims that their religious liberty had been infringed, the court explained that Billy and Lillian’s parents remained free to teach them whatever religious principles they pleased — at home.

The decision was a bitter disappointment for the Gobitis family. For Jehovah’s Witnesses around the country, it proved devastating. Scored by the country’s highest court as agents of disloyalty, Witnesses faced a flurry of ferocious persecution. From Maine to Wyoming, Witnesses were beaten and jailed, tarred and feathered, their sanctuaries burned to the ground. The ACLU told the Department of Justice that 1,500 Witnesses had been physically attacked in 300 communities nationwide. “They’re traitors,” explained one sheriff as Witnesses were driven out of his community; “the Supreme Court says so. Ain’t you heard?”

The justices read reports of these events with horror and alarm. Several began rethinking their earlier decision. Some stated publicly that they had gotten it wrong. In 1943, the chance came to revisit the issue in a strikingly similar case. This one involved a West Virginia Witness, also suspended for refusing to salute the flag.

The court announced its decision in the case of West Virginia v. Barnette on June 14, 1943. Six justices voted in favor of the Witness and against the precedent from the Gobitis case. Somewhere, 18-year-old Billy Gobitis must have been cheering. Appropriately enough, it was Flag Day.

The court’s opinion, by Justice Robert Jackson, is perhaps the most eloquent statement of First Amendment freedoms in Supreme Court history. Jackson was a gifted prose stylist, and in the Barnette case he rose to the occasion with arguably the greatest opinion he ever wrote.

The opinion concluded with a ringing climax. “If there is any fixed star in our constitutional constellation,” Jackson wrote, “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.” By forcing students to salute the flag in violation of their religious convictions, the court held, school districts around the country were unconstitutionally prescribing orthodoxy.

But shouldn’t unelected judges defer to decisions made by the people’s democratically appointed representatives? Not when fundamental rights are at play. “The very purpose of a Bill of Rights,” Jackson explained, “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 life, liberty, and property,” Jackson continued, “to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

Most Americans know this in their bones, even if they know little else about the Constitution. There are some rights that no official can infringe, some spheres of life where government power must not intrude. Popular sovereignty is the foundation of our constitutional order, but there are some things even more sacred than collective self-governance, some rights beyond even democracy’s reach. The Declaration of Independence calls such rights “inalienable;” they cannot be surrendered or sold. Legitimate government exists to “secure” them. No government is authorized to subvert them.

As I have suggested earlier in this series, the most basic protection for individual rights lies in the Constitution’s structure — in its reciprocal checks and balances, as well as in the separation of powers within the national government and between the national government and the states. But these structural protections, though powerful, are incomplete. The Bill of Rights — the first 10 amendments to the Constitution, supplemented and applied against the states by the 14th Amendment — exists to plug the gaps.

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On the whole, it has plugged them remarkably well. There have been lapses, to be sure. It took the Supreme Court too long to acknowledge the full promise of the 14th Amendment, and it has taken the country as a whole too long to make Bill of Rights guarantees a reality for all Americans. But focusing too fixedly on past failures or infamous Supreme Court rulings can obscure the powerful if mundane reality of millions of Americans, across multiple generations, speaking what they think, publishing what they please, and worshiping (or not) as the Holy Spirit moves them.

This mundane reality has been possible, however, not only because of what the Bill of Rights says or what the Supreme Court rules, but also and especially because of what the American people have internalized: an unshakable determination to defend and exercise their foremost freedoms, and to allow others to do the same. For most of our modern history, the Bill of Rights has been a source of unity and consensus — the preeminent object of our constitutional patriotism.

Consensus around the Bill of Rights has been broad and deep, so much so that in recent decades the fiercest controversies regarding individual rights have played out at the margins. In 1965, for instance, the Supreme Court found in the “penumbras” of the Bill of Rights a promised right to privacy. Eight years later, this ostensible right to privacy became the basis of the Court’s ruling in Roe v. Wade that the Constitution guarantees a robust right to abortion. Roe has proved a source of intense and enduring controversy, as have rulings related to a host of other hot-button issues — from affirmative action to same-sex marriage, from assisted suicide to corporate political speech. These debates have been intense, not only because the societal stakes so high, but because it is not always clear (to put it mildly) how (or if) the Constitution’s 18th-century text applies to these 21st-century problems. 

In some respects, of course, the Bill of Rights does reflect the particular concerns of the 18th century. It’s nice to know, for instance, that the government can’t require us to quarter troops in peacetime, but most of us don’t often think about the third amendment. In other respects, however, the Bill of Rights has aged astonishingly well. The Constitution’s protections with respect to criminal procedures remain remarkably relevant, and in my view the essential guarantees of the First Amendment — religious liberty, the freedoms of speech and of the press, the right of peaceful protest — are as timeless as they are priceless.

For a long time, they were also uncontroversial, despite debates at the margins. Running through all the fierce, rights-related debates of the late-20th and early 21st century were a set of common convictions about the right of all individuals to think for themselves and to express their thoughts in words of their own choosing. Throughout the stormy constitutional controversies that have attended America’s culture wars, contending factions all steered by the “fixed star” that Justice Jackson extolled back in 1943.

Today we seem to be losing sight of that star. In recent years, too many of us have reneged on our common commitments to allow others to voice unpopular opinions, to live the fundamental tenets of their faith and to gather together to call for reform. Too many have forgotten that protected protests must be peaceful, and that a vigorous press is essential to democratic freedom. Too many have forgotten the wisdom, spoken long ago by Supreme Court Justice Louis Brandies, that “the remedy to be applied” to false or wicked speech “is more speech, not enforced silence.”

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I believe that this applies in principle to private actors as well as to the government. Freedom survives and flourishes through our collective commitment to the principles of freedom. If Americans generally abandon their allegiance to the paramount freedoms of the First Amendment, there will be little the Supreme Court (or anyone else) can do to save us from ourselves. Nor will it help much if we preserve our constitutional liberties against government overreach, only to surrender them to the prying eyes or censorious policies of powerful corporations. 

True, the Bill of Rights doesn’t bind private corporations the way it binds the government. But our society will be stronger and our liberty more secure if corporations willingly and eagerly embrace the spirit of our First Amendment freedoms. In an age increasingly dominated by technological titans, the gravest threats to freedom might well stem from private rather than public actors. Perhaps that is already the case. In any event, citizens should be vigilant and legislators active. In a time when one hears much talk of the imperatives of corporate morality, perhaps the most urgent imperative of all is for corporations and citizens alike to re-embrace the spirit of the First Amendment. 

The Bill of Rights is now 230 years old. Although its promises have sometimes been flouted or applied selectively, it has served us, on the whole, exceedingly well. But it faces novel challenges and unprecedented strains. In the face of those challenges, it is past time for us to renew our acquaintance with, and our commitment to, these precious guarantees. May all Americans, once more and forever, steer by the fixed star of our first and foremost freedoms.

Justin Collings is a professor at Brigham Young University Law School and a fellow at the Wheatley Institution.

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