On November 10, the Michigan Senate passed a bill directing every school board to "ensure that each pupil in each public school it operates is required to recite the pledge of allegiance to the flag of the United States each school day." A separate section clarifies that pupils "shall not be compelled" to recite the pledge against pupil or parental objections.
The Michigan House of Representatives has yet to act. Meanwhile, a Nebraska state senator plans to introduce a similar bill when the Nebraska legislature convenes in January. Most states already have such laws.
Should the pledge be required? Should patriotism be compulsory? Can it be? The Supreme Court, it turns out, has already addressed these questions in a classic statement of American liberty and intellectual freedom in education: West Virginia State Board of Education v. Barnette (1943).
"If there is any fixed star in our constitutional constellation," ruled the Court, "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."
The case that led to this ruling came out of West Virginia but reflected a national crisis over compulsory patriotism. In January 1942, seeking to foster "the ideals, principles, and spirit of Americanism," the state Board of Education mandated that teachers and pupils in public schools regularly salute the flag and pledge their allegiance.
Jehovah's Witnesses nationwide refused to participate in such rituals. "Thou shalt have no other gods before me," God had commanded in Exodus. "Thou shalt not bow down to them nor serve them."
In Barnette, wary of governmental indoctrination, the Supreme Court found the mandatory flag rituals to violate the constitutional requirements of democratic self-government. Democracy requires free minds and is thus inconsistent with forms of schooling that "strangle the free mind at its source."
"There is no mysticism in the American concept of the State or of the nature or origin of its authority," wrote the court. "We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority."
Without questioning that "national unity is the basis of national security," the opinion by Justice Robert Jackson observed that the promotion of national unity could proceed via "persuasion and example" rather than "compulsion." Efforts to "coerce uniformity of sentiment" were deemed needless and dangerous.
"As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be," the court said. "Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing."
Coercive efforts to achieve unity, the court warned, would undermine the legitimacy of schools. Instead, public schools must respect democratic principles of intellectual freedom. "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."
What about the community interest in social cohesion and patriotic commitment? Diversity and liberty pose no threat. "We apply the limitations of the Constitution," insisted the court, "with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization."
Patriotic ceremonies, then, must be "voluntary and spontaneous instead of a compulsory routine." To doubt that American patriotism can flourish under such conditions, the court observed, "is to make an unflattering estimate of the appeal of our institutions to free minds."
Nearly 70 years later, we should not forget that one of the Supreme Court's most rigorous and stirring defenses of liberty came in the middle of World War II in a case involving children pledging their allegiance in school. Compulsory patriotism defies the First Amendment.
"Freedom to differ," proclaimed the court, "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."