The Charlotte News

Tuesday, June 4, 1940


Site Ed. Note: The case to which Cash refers in "Salute" is Minersville School Dist. v. Gobitis, 310 U.S. 586. The case balanced religious freedom against the authority of a local government to determine the regimen of education within the public schools and found that the degree of imposition on religious beliefs in disallowing individual students to refuse to salute the flag was insubstantial and hence, in this case, religious freedom was outweighed by the local government's right to determine the public school curriculum. The lone dissenter in this case was soon to become in 1941 Chief Justice Harlan Fiske Stone, elevated to the position by Roosevelt after having been appointed to the Court by Calvin Coolidge, a Republican. Contrast this 8-1 decision from a Court populated with Roosevelt "Liberals", including the opinion's author, Felix Frankfurter, and Justice William O. Douglas, to the more recent 1989 decision of the Court in the flag-burning case, Texas v. Johnson, 491 U.S. 397, a decision in which Reagan appointees, Justices Scalia and Kennedy, two of the more conservative members of a predominantly "Conservative" Court, joined the 5-4 majority opinion written by Eisenhower appointee William Brennan. Which goes to demonstrate that attempting to classify judges and Supreme Court Justices in advance or even case by case as "Liberal" or "Conservative" is often, if not more often than not, a fool's game. Even such labels as "judicial restraint" and "judicial activism" wind up as often as not topsy-turvy as to who one might predict to support the one principle more than the other, especially as taken case by case. Witness, for instance, the "judicial activist" role played by five justices identified with "judicial restraint" in the majority opinion in Bush v. Gore. The outcome often depends more on the specific factual stance before the Court and the competing equities of the parties than the grander ideological principles in play.

Also contrast the Gobitis case with Engel v. Vitale, 370 U.S. 421, and Abington School Dist. v. Schempp, 374 U.S. 203, the unanimous school prayer cases of 1962 and 1963, in which the principle at issue was whether a school board's requirement of recitation in the first case of a religiously neutral prayer and in the second of the Lord's Prayer was a prohibited establishment of religion by a governmental entity in contravention of the First Amendment's bar, a very different issue from whether a governmental entity interferes with or prohibits the First Amendment free exercise of religion by compelling saluting of the flag, despite an individual's religious beliefs to the contrary.

Though we often find ourselves at difference with the high Court's opinions, when one considers the principles at issue in each case and the facts of the case in detail, quite usually the cases make amazingly good sense, sometimes both as to the majority and the dissent, even over generations intervening the decisions and even though often seemingly contravening old-fashioned "common sense". And that is especially amazing when one considers that these decisions are passed upon by nine persons most often appointed by different Presidents, from different political parties, and with a variety of personal and professional backgrounds within the legal profession. But if common sense were or could be the only arbiter at the bar, then we should not need courts or laws at all, in which case our society would fast become as the Nazi and Fascist states of the 1930's, where plainly subjectivity, "common sense", was the rule of the day.

But if you should heretically disagree with that premise, you may simply curse, as did Mr. Bumble, "If the law supposes that, ... the law is a ass, a idiot." But, we think and suppose, 'tis better to read--and read rightly, not become as the Abecedarians, whom Jack Cade would have no doubt dearly loved and allowed to live--as retinue under his dictatorship. For as Bassanio said, "Wrest once the law to your authority: To do a great right, do a little wrong."


The Pro and Con of a Supreme Court Ruling

The spirit of the times, it may be suspected, affects the Supreme Court also. For yesterday's ruling that school children may legally be required to salute the flag under penalty of expulsion and despite religious beliefs which ban such salutes as a form of idolatry--this ruling won the support of some very strange fish among the Nine Young and Not So Young Men. It is certainly startling to find Frankfurter and Douglas lining up with McReynolds instead of with Stone.

As to the ruling itself it is difficult to know whether it should be applauded or deplored. Regardless of what the Court says, the plain fact is that it does impose a penalty on the religious beliefs of those who refuse to salute on religious grounds--for it bars them from the use of the public schools. Indeed, it plainly imposes a penalty on the freedom of belief of anybody who refuses to salute on any grounds--which was precisely what the First Amendment to the Constitution was designed to prevent. And it smacks unpleasantly of attempting to beat patriotism into the people with a club.

Worse, the precedent clearly opens the way for actual assaults on the Bill of Rights.

On the other hand, it is the simple fact that national unity is just now the most important of all things--and promises to remain so for many years to come if Hitlerism cannot be halted in Europe and destroyed there. And it may be that to achieve that unity and to control disloyal elements in our ranks, we shall find it necessary to suspend the Eighteenth Century idea of human liberty which is involved in the Bill of Rights. Yet it is plain, too, that we should do that only in cases where the necessity is clear and undeniable.

It may reasonably be questioned whether the mere refusal to salute a symbol by a few religious and political crackpots constitutes such a necessity. As it may be doubted that the enforcement of the gesture will plant in the heart the loyalty and devotion upon which at last the true unity of the Republic must rest.

Time To Duck

Adolf's Reassurances Are Nearly Always Fatal

The most ominous thing which has happened to us is that Adolf Hitler is now leaning over backward to "reassure" us that he has no designs on the Western Hemisphere. He is even so helpful that he advises us that the British have agents swarming in Mexico "to make trouble and charge it to the Germans." And that the British are planning to sink American ships fleeing from the war zone with great crowds of innocent passengers.

That, to be sure, is a little less than kind to our intelligence, in view of the fact that we know that Nazis and Reds have been pouring into Mexico in great numbers and forming a Fifth Column with a view to pulling revolution there, that the German consulates in every great Latin country are busily promoting Fifth Columns, and that Bolivia is already a Nazi pocket borough. But of course it is Adolf's often expressed opinion that Democratic peoples are incurably fools who cannot learn from even the most obvious object lesson.

And certainly we should be fools if we forgot the record. For that record shows that, without exception, when Adolf Hitler started reassuring a nation, it was time for it to take steps to protect itself without delay. Adolf reassured Poland right on up until the time when he got ready to strike. Adolf told the world at Munich that he would not think of having Czechs and Slovaks. Adolf told Austria and the world that he would not think of annexing Austria. Adolf's stooge newspapers were declaiming that the "Nazi menace" to Holland and Belgium was "lying propaganda" at the very moment when the Nazi troops were already moving on those countries.

And now Adolf is simply trying to practice on us what he practiced successfully on the rest of the democracies--to confuse and paralyze us until he is ready to take us on.

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