Barnette's Big Blunder

Abstract

Among the most celebrated statements ever issued in a Supreme Court opinion is Justice Robert Jackson's resounding declaration in Barnette v. West Virginia Board that [i]f there is any fixed star in our constitutional constellation, it is that official, high petty, can prescribe what shall be orthodox in politics, nationalism, religion, other matters of opinion force citizens to confess by word act their faith therein. By using the preposition or rather than and, Jackson asserted two constitutional prohibitions: government may not force citizens to confess an orthodoxy, but government may also not prescribe any orthodoxy. Upon reflection, however, the no prescription prohibition is manifestly untenable, and neither Justices nor scholars have ever tried to apply it in any consistent way. Nonetheless, this impossible prohibition exerts a powerful and unfortunate rhetorical influence over constitutional discourse: recent examples discussed in the article include work by respected legal scholars including Kent Greenawalt and Michael McConnell and judicial decisions including the recent Newdow decision on the Pledge of Allegiance. This article first explains why the no prescription prohibition could not possibly be taken at face value. The article then considers the various ways in which courts and scholars have tried to qualify reinterpret that prohibition (such as by limiting the prohibition to religion), and it argues that these efforts do not succeed in avoiding the decisive objections to a no prescribed orthodoxy principle. Our constitutional discourse would be more honest and cogent, the article concludes, if Barnette's no prescription principle were excised root and branch.