D-Day Reminder: Constitutional Principles Went to War Abroad to Preserve them at Home

The 80th anniversary of D-Day, justly commemorated as history’s greatest military invasion, reminds us of the fact that World War II was waged to defeat the forces of authoritarianism abroad so our constitutional democracy and all that comes with it—freedom, justice and the rule of law—could be preserved at home.

When American soldiers stormed the beaches at Normandy on June 6, 1944, they fought for the cherished principles embodied in the Constitution and those trumpeted by the Bill of Rights: limited governmental powers confined by the Constitution, freedom of speech, press and religion, equal protection of the law, due process of law and popular sovereignty. If allied forces had not prevailed, those constitutional principles and democratic values might have been lost forever.

War abroad to preserve democracy at home cannot by itself succeed if America’s governmental institutions, including the Supreme Court, fail to defend fundamental constitutional principles. Fully informed and influenced by the existential threats that authoritarianism posed to our constitutional democracy in World War II, the Court, in West Virginia Bd. of Education v. Barnette, in what represented Justice Robert H. Jackson’s most memorable and eloquent opinion, delivered on June 14, 1943—Flag Day—a 6-3 decision that enjoys its lofty status in the pantheon of landmark cases extolling the virtues of freedom of speech, religion and constitutionally limited government.

The State of West Virginia had enacted a law that required teachers and students to salute the flag and recite the Pledge of Allegiance each day. The Supreme Court, just three years before, in Minersville v. Gobitis (1940), had upheld in an 8-1 decision, a similar Pennsylvania statute, challenged by Jehovah’s Witnesses, who contended that the mandate violated their First Amendment right of freedom of religion because it coerced them to engage in idolatry. The Court upheld the statute on grounds that it promoted the goals of citizenship and patriotism and served the interests of national unity and security.

Legal scholars, as well as organizations as patriotic as the American Legion, had roundly criticized the compulsory statute, believing the question of saluting the flag should be voluntary. Now, the Barnette Court, in full view of the fact that Germans, in the iron grip of Hitler’s totalitarianism, were required by law to salute the Fuhrer, recoiled at the prospect of imposing on Americans a requirement that they, too, assume a mandated physical position to salute the flag. The Court, in a remarkable 6-3 ruling, overturned Gobitis and upheld a challenge to the law brought by Jehovah’s Witnesses on the grounds that it violated their First Amendment rights of free speech and religion. Three Justices—William O. Douglas, Hugo Black and Frank Murphy—who had voted with the Gobitis majority, reversed course in Barnette and recanted their position in Gobitis.

Justice Jackson wrote for the Court, “If there is any fixed star in our constitutional constellation, 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.” West Virginia was promoting patriotism, but its means could not justify its use of coercive power.

“The Bill of Rights,” Justice Jackson said, “denies those in power any legal opportunity to coerce” allegiance. “Authority here is to be controlled by public opinion, not public opinion controlled by authority.” Jackson’s stark contrast of the essential difference between totalitarianism, as manifested in Hitler’s Germany, a closed society without freedom, and the constitutional democracy of the United States, founded on the indispensable conditions of a free and open society, brought into sharp focus what allied forces were fighting for in World War II.

In America, as in all republics grounded on the consent of the people, national unity must be obtained through persuasion and example, not by coercion. Justice Jackson, drawing on history, and the current practice in Germany, perceived the paths and results of state coercion of beliefs, thoughts, religion and speech. “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

Justice Jackson’s opinion was applauded by the legal fraternity and the nation. The eloquence of his judicial defense of individual liberty and democracy has not been matched since.

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