The Charlotte News

Tuesday, October 8, 1940



Site Ed. Note: "You make me dizzy, Miss Lizzie, when you rock 'n' roll..." We have to wonder whether calling Mr. Hoover culpably "negligent" in print, even though in jest, was such a hot idea in 1940. Mr. Hoover was not known for his sense of humor, but rather, as we have noted before, possessed great gravity.

Incidentally, then Attorney General Robert Jackson, named on the list by the "master sleuth" as a "Red", was later head prosecutor at the Nuremburg trials in 1946, was by then a distinguished Justice on the United States Supreme Court, appointed in 1941 by FDR, in which capacity our present Chief Justice, William Rehnquist, later clerked for him before his death in 1954. Joseph Kamp, the author of this obviously authoritative work to which Cash gives short shrift, Fifth Column in Washington, in 1960 published another book claiming the Zionist movement made up anti-semitic incidents to advance its cause. And we feel certain that Mr. Kamp's nickname must have been "Kultur", but only in the best of kompany.

One of Jackson's best known decisions was West Virginia State Board of Education v. Barnette, (1943) 319 U.S. 624, which struck down mandatory saluting of the United States flag by school children as violative of the First Amendment. In light of the recent decision of the Ninth Circuit Court of Appeal holding the Pledge of Allegiance unconstitutional under the First Amendment in Newdow v. U.S. Congress, et al., (2002) ____ F. 4th ______, (see especially pages 9118-9124), it is well worth reading the Barnette case, a 6-3 decision. Bear in mind of course that there are distinguishing facts from the present case in that the Pledge was not made compulsory and no students were suspended from school for failing to adhere to the ceremony, as in Barnette. Nor did Barnette involve principally the Establishment and Free Exercise clauses of the First Amendment, as does the present case. But, query whether peer pressure, being what it always is in school days, makes the present situation practically any different. Can any individual student truly remain mum for long without eventually being ostracized or winding up with a blackeye, figuratively or actually? (And indeed, a quick read of the salient portions of the Newdow case indicates that the Ninth Circuit, having carefully reasoned through its opinion based on Supreme Court doctrine ranging back to the Barnette case, said essentially just that, citing language from Justices O'Connor and Kennedy in more recent Supreme Court cases regarding the notion that for a government entity to coerce the recitation of words which imply endorsement of a religion or religious belief is to cause the individual who does not believe in that religion or belief to feel as an outsider and is therefore tantamount (which is not to say Tantalus on the climb) to the Establishment of a religion.)

Perhaps, the issue is a bit more complicated than television talk show hosts might have you believe.

Interestingly, Justice Felix Frankfurter, a noted civil libertarian on the Court until 1962, wrote the dissent in Barnette. Justice Jackson wrote for the majority:

"It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony or whether it will be acceptable if they simulate assent by words without belief and by a gesture barren of meaning. It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence. But here the power of compulsion is invoked without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort even to muffle expression. To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.

"Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous. Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations. If official power exists to coerce acceptance of any patriotic creed, what it shall contain cannot be decided by courts, but must be largely discretionary with the ordaining authority, whose power to prescribe would no doubt include power to amend. Hence validity of the asserted power to force an American citizen publicly to profess any statement of belief or to engage in any ceremony of assent to one presents questions of power that must be considered independently of any idea we may have as to the utility of the ceremony in question.

"...It was also considered in the Gobitis case that functions of educational officers in states, counties and school districts were such that to interfere with their authority 'would in effect make us the school board for the country.'

"The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures--Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

"Such Boards are numerous and their territorial jurisdiction often small. But small and local authority may feel less sense of responsibility to the Constitution, and agencies of publicity may be less vigilant in calling it to account. The action of Congress in making flag observance voluntary and respecting the conscience of the objector in a matter so vital as raising the Army contrasts sharply with these local regulations in matters relatively trivial to the welfare of the nation. There are village tyrants as well as village Hampdens, but none who acts under color of law is beyond reach of the Constitution.

"...National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.

"... The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ 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.

"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. If there are any circumstances which permit an exception, they do not now occur to us.

"We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control." [Emphasis added.]

And these statements of the Court carry perhaps even greater weight when one considers that they were published in June, 1943, eighteen months after Pearl Harbor and as United States soldiers perished daily in the Pacific.

The fabric of the flag, we maintain, is only as strong as the fabric of the Constitution without which it could not fly at all.

And while on the subject, we again suggest that a mere amendment of the Pledge makes it constitutional, by removing the two Establishing words, leaving them to the Church and the home to impress upon us, and for the sake of clarity, adding Constitution in place of flag and democratic before republic.

Headless Body

FR Has No Excuse To Leave Draft Group Without Leader

If it is true that President Roosevelt plans to defer the appointment of a director for the draft until after the November election, then it is absolutely inexcusable.

Officials are saying that the absence of a man to make final and conclusive decisions is already hampering them in their work, that often decisions can be arrived at only by the method of exhaustion--when one side or another in an argument get so tired of it and of the delay that he gives in.

But more important than that is the effect it is going to have on the people to see the draft machine sloughing around without any effective head. There is already a good deal of suspicion in the country over the general vagueness with which the national defense program is being carried out--genuine fear that there is a great deal of smoking thunder but very little fire and lightning.

That may not be so, but the Administration has only itself to blame for the feeling. And if that feeling develops to storm proportions because of the refusal to name a draft head, for that also it will have only itself to thank.

It is nonsense for the President to try to pretend that he is so busy with great affairs that he will have no time to consider the selection of a draft board head until after November. There is no greater affair than this. And his hesitancy is certain to breed the idea that he has in mind the appointment of somebody who he is far from sure will be popular with the nation. Or at the very best, that he must avoid any possible offense to anybody for purely political reasons. That is anything else but the bold, decisive role he seeks to present as peculiarly his.


Harpy Trick

Congress Should Extend That Law To Cover Land

The profiteer is already with us. The War Department announces that land speculators have already cost it $500,000 on the sites for seven national defense factories.

Nobody expects, of course, that land sites should be sold to the Government at prices below their established value. But what happened in these cases was that the speculators got wind of the fact that the sites had been fixed on and rushed into buy them up and hold them until the Government agreed to pay a fancy figure for them. They performed no service, they added no value to the land--they simply held up the Government and made it pay.

And in times like these, when men's bodies are being drafted for the Army and Navy, that sort of thing is intolerable.

Meantime, there is something Congress can do about it. The Government now has the power of eminent domain, under which it can fix a price for the land and take it over. But, as the law stands, such cases have to be decided in the courts before it can take possession. That might mean endless delay if the speculators chose to fight--at imminent peril to the nation. Congress has already passed a law allowing the Government to take over factories without waiting for a court decision--leaving the price to be settled later. It should at once extend the provisions of that act to land and other property necessary to the national defense.


In The Middle

Mr. Matthews Should Have Seen This One Coming

Herbert L. Matthews, New York Times man, expelled from Italy because of the dispatch in which he wrote that the Axis wanted to defeat Mr. Roosevelt's re-election, explains that the President made a political issue of the dispatch and so left the Italians no choice but to retort by making a goat of him. However, Mr. Matthews is too old a hand at the foreign correspondent game to really believe he has much kick coming.

Before now he has had to move about a good deal because of his penchant for blurting out what he thinks is the truth. He left Spain with Franco's victory because he had told much too much home truth about that butcher.

As to the truth of the story from Rome we don't know.

In any case, and whether Mr. Matthews was simply guessing or saying what he had good reason to believe to be the truth or just getting in a plug for Mr. Roosevelt, he still shouldn't have been surprised at the outcome. He is too experienced a correspondent not to know that the only way correspondents can hope to stay in Axis countries these days is by sending out dispatches the results of which are likely to please the dictators.

And he is too old and good a reporter not to know that when reporters get themselves caught between two politicians out for great office, they are virtually certain to get hurt.


Master Sleuth

He Finds Nation's Heads Are Mainly Traitors

Mrs. Lizzie Dilling ("The Red Network") had better look to her laurels. So had Martin Dies. And as for such master sleuths as Sherlock Holmes, Nick Carter, and J. Edgar Hoover, they are backed right out of the picture. Indeed, J. Edgar seems to be open to the charge of culpable negligence in office.

So much at least we deduce from reading Fifth Column in Washington, by Mr. Kamp, Mr. Joseph P. Kamp, to be exact. Even Miz Lizzie could never do better than prove that President Roosevelt was a Red in the pay of Moscow. But Joseph P., working right under J. Edgar's nose, has established to his own satisfaction that Fifth Columnists,--i.e., traitors to United States--infest the highest posts in Washington. Among the traitors that he lists as making up America's Fifth Column No. 1 are:

The Hon. Robert H. Jackson, Attorney General of the U.S.

The Hon. Harold Ickes, Secretary of the Interior

The Hon. Harry Hopkins, Secretary of Commerce

The Hon. Francis Perkins, Secretary of Labor

The Hon. Robert M. Lovett, Secretary of the Virgin Islands

Sidney Hillman, Labor Member of the National Defense Counsel

Aubrey Williams, Administrator, NYA

Still, the master sleuth himself is not immune to being trailed on his own account. The staff of The Hour, a publication devoted to ferreting out Fascists, has been looking into him, and reports in the current issue that he runs around with Papa Coughlin, General George Van Horne Mosley, Joseph E. McWilliams (ailing Fuehrer of the American Destiny Party), and various Christian Front and German-American Bund leaders. Maybe that explains his scoop over the G-Men.

All that remains now, we guess, is for somebody to start trailing The Hour. With that, we ought to have everybody exposed. It looks like a job for Lizzie.


Last Shred

London Ends Appeasement But We Still Cling To It

The British propose to reopen the Burma Road, which appears to be clear-cut, just about disposes of the last vestige of the Baldwin-Chamberlain appeasement policy.

In this case, as in all others, it was a dismal failure. Intended to conciliate the Japanese, and actually had an effect toward emboldening them to join the Axis openly and to denounce grandiose plans for taking over the whole Far East, British possessions included.

So far as the British are concerned, the reopening of the road probably won't mean much: for England needs all the arms she can get at home. But it may make it possible for the United States to turn to aiding China effectively. Most of our new airplane production is earmarked for Europe or our own army and navy, of course. Though we have a good many planes too old to be of any use to either ourselves or Britain.

These would be extremely useful to the Chinese, for the Japanese are said to be using low-test gasoline in their planes and can move about no more nimbly than an old plane which has the better gasoline.

Meantime, there is still too much appeasement in our own stand. Why the embargo on scrap iron should have been deferred until October 16 is hard to understand. And even harder to understand is the fact that we continue to supply Japan with all the petroleum products save only high octane gasoline for airplanes. This oil propels her ships and may cost us dear before long.

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