West Virginia State Board of Education v. Barnette

624

Syllabus.

mental subdivisions. Those matters, as well as the char- acter, extent and duration of tax exemptions for the Indians, are questions of policy for the consideration of Congress, not the courts. Board of Commissioners v.

Seber, supra. Our inquiry is not with what Congress might or should have done, but with what it has done.

That inquiry can be answered here only by holding that the restricted funds in these estates, as well as the lands which the Court holds immune, were not subject to Okla- homa's estate tax.

The CHIEF JUSTICE, MR. JUSTICE REED and MR. Jus- TICE FRANKFURTER join in this dissent.

No. 591. Argued March 11, 1943.--Decided June 14, 1943.

1. State action against which the Fourteenth Amendment protects in-

cludes action by a state board of education. P. 637.

2. The action of a State in making it compulsory for children in the

public schools to salute the flag and pledge allegiance-by extending the right arm, palm upward, and declaring, "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands: one Nation, indivisible, with liberty and justice for all"--violates the First and Fourteenth Amendments. P. 642.

So held as applied to children who were expelled for refusal to comply, and whose absence thereby became "unlawful," subject- ing them and their parents or guardians to punishment.

3. That those who refused compliance did so on religious grounds

does not control the decision of this question; and it is unnecessary to inquire into the sincerity of their views. P. 634.

4. Under the Federal Constitution, compulsion as here employed is

not a permissible means of achieving "national unity." P. 640.

BOARD OF EDUCATION v. BARNETTE. 625 624

Opinion of the Court.

5. Minersville School Dist. v. Gobitis, 310 U. S. 586, overruled; Ham-

ilton v. Regents, 293 U. S. 245, distinguished. Pp. 642, 632.

47 F. Supp. 251, affirmed.

APPEAL from a decree of a District Court of three judges enjoining the enforcement of a regulation of the West Virginia State Board of Education requiring chil- dren in the public schools to salute the American flag.

Mr. W. Holt Wooddell, Assistant Attorney General of West Virginia, with whom Mr. Ira J. Partlow was on the brief, for appellants.

Mr. Hayden C. Covington for appellees.

Briefs of amici curiae were filed on behalf of the Com- mittee on the Bill of Rights, of the American Bar Associa- tion, consisting of Messrs. Douglas Arant, Julius Birge, William D. Campbell, Zechariah Chafee, Jr., L. Stanley Ford, Abe Fortas, George I. Haight, H. Austin Hauxhurst, Monte M. Lemann, Alvin Richards, Earl F. Morris, Bur- ton W. Musser, and Basil O'Connor; and by Messrs. Os- mond K. Fraenkel, Arthur Garfield Hays, and Howard B.

Lee, on behalf of the American Civil Liberties Union,- urging affirmance; and by Mr. Ralph B. Gregg, on behalf of the American Legion, urging reversal.

MR. JUSTICE JACKSON delivered the opinion of the Court.

Following the decision by this Court on June 3, 1940, in Minersville School District v. Gobitis, 310 U. S. 586; the West Virginia legislature amended its statutes to re- quire all schools therein to conduct courses of instruction in history, civics, and in the Constitutions of the United States and of the State "for the purpose of teaching, fos- tering and perpetuating the ideals, principles and spirit of Americanism, and increasing the knowledge of the or- ganization and machinery .of the government." Appel-

626

Opinion of the Court.

lant Board of Education was directed, with advice of the State Superintendent of Schools, to "prescribe the courses of study covering these subjects" for public schools. The Act made it the duty of private, parochial and denomi- national schools to prescribe courses of study "similar to those required for the public schools." '

The Board of Education on January 9, 1942, adopted a resolution containing recitals taken largely from the Court's Gobitis opinion and ordering that the salute to the flag become "a regular part of the program of activi- ties in the public schools," that all teachers and pupils "shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly." 2

"In all public, private, parochial and denominational schools located within this state there shall be given regular courses of instruction in history of the United' States, in civics, and in the constitutions of the United States and of the State of West Virginia, for the purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and :ncreasing the knowledge of the organization and machinery of the government of the United States and of the state of West Virginia. The state board of education shall, with the advice of the state superintendent of schools, prescribe the courses of study covering these subjects for the public elementary and gram- mar schools, public high schools and state normal schools.

It shall be the 'duty of the officials or boards having authority over the re- spective private, parochial and denominational schools to prescribe. courses of study for the schools under their control and supervision similar to those required for the public schools."

The text is as follows: "WHEREAs, The West Virginia State Board of Education holds in highest regard those rights and privileges guaranteed by the Bill of Rights in the Constitution of the United States of America and in the Constitution of West Virginia, specifically, the first amendment to the Constitution of the United States as restated in the fourteenth amend-

BOARD OF EDUCATION v. BARNETTE. 627 624

Opinion of the Court.

The resolution originally required the "commonly ac- cepted salute to the Flag" which it defined. Objections to the salute as "being too much like Hitler's" were raised by the Parent and Teachers Association, the Boy and Girl

ment to the same document and in the guarantee of religious freedom in Article HI of the Constitution of this State, and

"WmsnAB, The West Virginia State Board of Education honors the broad principle that one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law; that the propagation of belief is protected whether in church or chapel, mosque or synagogue, tabernacle or meeting house; that the Constitutions of the United States and of the State of West Virginia assure generous immunity to the individual from imposition of pen- alty for offending, in the course of his own religious activities, the religious views of others, be they a minority or those who are dom- inant in the government, but

"WHan&xs, The West Virginia State Board of Education recognizes that the manifold character of man's relations may bring his conception of religious duty into conflict with the secular interests of his fellow- man; that conscientious scruples have not in the course of. the long struggle for religious toleration relieved the individual from obedience to the general law not aimed at the promotion or restriction of the religious beliefs; that the mere possession of convictions which con- tradict the relevant concerns of political society does not relieve the citizen from the discharge of political responsibility, and

"WH xY s, The West Virginia State Board of Education holds that national unity is the basis of national security; that the flag of our Nation is the symbol of our National Unity transcending all internal differences, however large within the framework of the Constitution; that the Flag is the symbol of the Nation's power; that emblem of freedom in its truest, best sense; that it signifies government resting on the consent of the governed, liberty regulated by law, protection of the weak against the strong, security against the exercise of arbitrary power, and absolute safety for free institutions against foreign aggres- sion, and

"WHEIs,

The West Virginia State Board of Education maintains that the public schools, established by the legisaturc of the State of West Virginia under the authority of the Constitution of the State of West Virginia and supported by taxes imposed by legally constituted measures, are dealing with the formative period in the development

628

Opinion of the Court.

Scouts, the Red Cross, and the Federation of Women's Clubs.' Some modification appears to have been made in deference to these objections, but no concession was made to Jehovah's Witnesses." What is now required is the "stiff-arm" salute, the saluter to keep the right hand raised with palm turned up while the following is repeated: "I pledge allegiance to the Flag of the United States of

in citizenship that the Flag is an allowable portion of the program of schools thus publicly supported.

"Therefore, be it RESOLVED, That the West Virginia Board of Educa- tion does hereby recognize and order that the commonly accepted salute to the Flag of the United States--the right hand is placed upon the breast and the following pledge repeated in unison: 'I pledge allegiance to the Flag of the United States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and justice for all'-now becomes a regular part of the program of activities in the public schools, supported in whole or in part by public funds, and that all teachers as defined by law in West Virginia and pupils in such schools shall be required to participate in the salute, honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly."

3The National Headquarters of the United States Flag Association takes the position that the extension of the right arm in this salute to the flag is not the Nazi-Fascist salute, "although quite similar to it.

In the Pledge to the Flag the right arm is extended and raised, palm UPWARD, whereas the Nazis extend the arm practically straight to the front (the finger tips being about even with the eyes), palm DOWNWARD, and the Fascists do the same except they raise the James A. Moss, The Flag of the United arm slightly higher."

States: Its History and Symbolism (1914) 108.

' They have offered in lieu of participating in the flag salute ceremony

"I have pledged my unqualified allegiance and devotion to Jehovah, the Almighty God, and to His Kingdom, for which Jesus commands all Christians to pray.

"I respect the flag of the United States and acknowledge it as a symbol of freedom and justice to all.

'I pledge allegiance and obedience to all the laws of the United States

that are consistent with God's law, as set forth in the Bible."

BOARD OF EDUCATION v. BARNETTE. 629 624

Opinion of the Court.

America and to the Republic for which it stands; one Na- tion, indivisible, with liberty and justice for all."

Failure to conform is "insubordination" dealt with by expulsion. Readmission is denied by statute until com- pliance. Meanwhile the expelled child is "unlawfully ab- sent" ' and may be proceeded against as a delinquent.

His parents or guardians are liable to prosecution,7 and if convicted are subject to fine not exceeding $50 and jail term not exceeding thirty days.'

Appellees, citizens of the United States and of West Vir- ginia, brought suit in the United States District Court for themselves and others similarly situated asking its injunc- tion to restrain enforcement of these laws and regulations against Jehovah's Witnesses. The Witnesses are an un- incorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by tem- poral government. Their religious beliefs include a literal

"Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them."

They consider that the flag is an "image" within this com- mand. For this reason they refuse to salute it.

"If a child be dismissed, suspended, or expelled from school because of refusal of such child to meet the legal and lawful requirements of the school and the established regulations of the county and/or state board of education, further admission of the child to school shall be refused until such requirements and regulations be complied with. Any such child shall be treated as being unlawfully absent from school during the time he refuses to comply with such requirements and regulations, and any person having legal or actual control of such child shall be liable to prosecution under the provisions of this article for the absence of such child from school."

6 § 4904 (4), West Virginia Code (1941 Supp.).

7 See Note 5, supra. -§§ 1847, 1851, West Virginia Code (1941 Supp.).

Opinion of the Court.

Children of this faith have been expelled from school and are threatened with exclusion for no other cause. Offi- cials threaten to send them to reformatories maintained for criminally inclined juveniles. Parents of such children have been prosecuted and are threatened with prosecu- tions for causing delinquency.

The Board of Education moved to dismiss the complaint setting forth these facts and alleging that the law and regu- lations are an unconstitutional denial of religious freedom, and of freedom of speech, and are invalid under the "due process" and "equal protection" clauses of the Four- teenth Amendment to the Federal Constitution. The cause was submitted on the pleadings to a District Court of three judges. It restrained enforcement as to the plain- tiffs and those of that class. The Board of Education brought the case here by direct appeal.'

This case calls upon us to reconsider a precedent decision, as the Court throughout its history often has been required to do.1' Before turning to the Gobitis case, however, it is desirable to notice certain characteristics by which this con- troversy is distinguished.

The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently re- quire intervention of the State to determine where the rights of one end and those of another begin. But the re- fusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peace- able and orderly. The sole conflict is between authority and rights of the individual. The State asserts power to condition access to public education on making a pre- scribed sign and profession and at the same time to coerce

9§ 266 of the Judicial Code, 28 U. S. C. § 380.

10 See authorities cited in Helvering v. G7ifflths, 318 U. S. 371, 401,

note 52.

BOARD OF EDUCATION v. BARNETTE. 631 624

Opinion of the Court.

attendance by punishing both parent and child. The lat- ter stand on a right of self-determination in matters that touch individual opinion and personal attitude.

As the present CHIEF JUSTICE said in dissent in the Gobitis case, the State may "require teaching by instruc- tion and study of all in our history and in the structure and organization of our government, including the guar- anties of civil liberty, which tend to inspire patriotism and love of country." 310 U. S. at 604. Here, however, we are dealing with a compulsion of students to declare a belief. They are not merely made acquainted with the flag salute so that they may be informed as to what it is or even what it means. The issue here is whether this slow and easily neglected 11 route to aroused loyalties con- stitutionally may be short-cut by substituting a compul- sory salute and slogan. ' This issue is not prejudiced by

11 See the nation-wide survey of the study of American history con- ducted by the New York Times, the results of which are published in the issue of June 21, 1942, and are there summarized on p. 1, col.

"82 per cent of the institutions of higher learning in the United States do not require the study of United States history for the undergraduate degree. Eighteen per cent of the colleges and uni- versities require such history courses before a degree is awarded.

It was found that many students complete their four years in college without taking any history courses dealing with this country.

"Seventy-two per cent of the colleges and universities do not re- quire United States history for admission, while 28 per cent require it.

As a result, the survey revealed, many students go through high school, college and then to the professional or graduate institution without having explored courses in the history of their country.

"Less than 10 per cent of the total undergraduate body was enrolled in United States history classes during the Spring semester just ended.

Only 8 per cent of the freshman class took courses in United States history, although 30 per cent was enrolled in European or world history courses."

'12 The Resolution of the Board of Education did not adopt the flag salute because it was claimed to have educational value.

It seems to have been concerned with promotion of national unity (see footnote

632

Opinion of the Court.

the Court's previous holding that where a State, without compelling attendance, extends college facilities to pupils who voluntarily enroll, it may prescribe military training as part of the course without offense to the Constitution.

It was held that those who take advantage of its oppor- tunities may not on ground of conscience refuse compli- ance with such conditions. Hamilton v. Regents, 293

U. S. 245. In the present case attendance is not optional.

That case is also to be distinguished from the present one because, independently of college privileges or require- ments, the State has power to raise militia and impose the duties of service therein upon its citizens.

There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their fol- lowings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment. Symbols of State often convey political ideas just as religious symbols come to convey theological ones. Associated with many of these symbols are appro- priate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a

2), which justification is considered later in this opinion. No infor- mation as to its educational aspect is called to our attention except Olander, Children's Knowledge of the Flag Salute, 35 Journal of Educational Research 300, 305, which sets forth a study of the ability of a large and representative number of children to remember and state the meaning of the flag salute which they recited each day in .school. His conclusion was that it revealed "a rather pathetic picture of our attempts to teach children not only the words but the meaning of our Flag Salute."

BOARD OF EDUCATION v. BARNETTE. 633 624

Opion of the Court.

symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn.

Over a decade ago Chief Justice Hughes led this Court in holding that the display of a red flag as a symbol of opposition by peaceful and legal means to organized gov- ernment was protected by the free speech guaranties of the Constitution. Stromberg v. California, 283 U. S. 359.

Here it is the State that employs a flag as a symbol of adherence It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks. Ob- jection to this form of communication when coerced is an old one, well known to the framers of the Bill of Rights.'8

to government as presently organized.

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 dan- ger of action of a kind the State is empowered to preveut 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 com-

28 Early Christians were frequently persecuted for their refusal to participate in ceremonies before the statue of the emperor or other symbol of imperial authority. The story of William Tell's sentence to shoot an apple off his son's head for refusal to salute a bailiff's hat is an ancient one. 21 Encyclopedia Britannica (14th ed.) 911-

included, suffered punishment rather than uncover their heads in deference to any civil authority.

Braithwaite, The Beginnings of Quakerism (1912) 200, 229-230, 232- 233, 447, 451; Fox, Quakers Courageous (1941) 113.

Opinion of the Court.

pulsion 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 dis- approve or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations.1' If official power exists to coerce accept- ance 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 cere- mony 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.

Nor does the issue as we see it turn on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellees' motive for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views

14 For example: Use of "Republic," if rendered to distinguish our government from a "democracy," or the words "one Nation," if in- tended to distinguish it from a "federation," open up old and bitter controversies in our political history; "liberty and justice for all," if it must be accepted as descriptive of the present order rather than an ideal, might to some seem an overstatement.

BOARD OF EDUCATION v. BARNETTE. 635 624

Opinion of the Court.

hold such a compulsory rite to infringe constitutional lib- erty of the individual."5 It is not necessary to inquire whether non-conformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty.

The Gobitis decision, however, assumed, as did the argu- ment in that case and in this, that power exists in the State to impose the flag salute discipline upon school children in general. The Court only examined and rejected a claim based on religious beliefs of immunity from an unques- tioned general rule.16 The question which underlies the

'5 Cushman, Constitutional Law in 1939-40, 35 American Political Science Review 250, 271, observes: "All of the eloquence by which the majority extol the ceremony of flag saluting" as a free expression of patriotism. turns sour when used to describe the brutal compulsion which requires a sensitive and conscientious child to stultify himself in public." For further criticism of the opinion in the Gobitis case by persons who do not share the faith of the Witnesses see: Powell, Conscience and the Constitution, in Democracy and National Unity (University of Chicago Press, 1941) 1; Wilkinson, Some Aspects of the Constitutional Guarantees of Civil Liberty, 11 Fordham Law Review 50; Fennell, The "Reconstructed Court" and Religious Freedom: The Gobitis Case in Retrospect, 19 New York University Law Quarterly Review 31; Green, Liberty under the Fourteenth Amendment, 27 Wash- ington University Law Quarterly 497; 9 International Juridical Associa- tion Bulletin 1; 39 Michigan Law Review 149; 15 St. John's Law Review 95.

"I The opinion says "That the flag-salute is an allowable portion of a school program for those who do not invoke conscientious scruples is surely not debatable. But for us to insist that, though the ceremony may be required, exceptional immunity must be given to dissidents, is to maintain that there is no basis for a legislative judgment that such an exemption might introduce elements of difficulty into the school disci- pline, might cast doubts in the minds of the other children which would themselves weaken the effect of the exercise."

310

U. S. at 599-600. And elsewhere the question under consideration was

stated, "When does the constitutional guarantee compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good?"

Id. at 593. And again, ".

(Italics ours.)

(Italics ours.)

531559-44----44

636

Opinion of the Court.

flag salute controversy is whether such a ceremony so touching matters of opinion and political attitude may be imposed upon the individual by official authority under powers committed to any political organization under our Constitution. We examine rather than assume existence of this power and, against this broader definition of issues in this case, reexamine specific grounds assigned for the Gobitis decision.

1. It was said that the flag-salute controversy confronted

the Court with "the problem which Lincoln cast in mem-

'Must a government of necessity be too strong for the liberties of its people, or too wbeak to main- tain its own existence?'" and that the answer must be in favor of strength. Minersville School District v. Gobitis, supra, at 596.

We think these issues may be examined free of pressure or restraint growing out of such considerations.

It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain it- self would be impressively vindicated by our confirming power of the State to expel a handful of children from school. Such oversimplification, so handy in political de- bate, often lacks the precision necessary to postulates of judicial reasoning.

If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority and would require us to override every liberty thought to weaken or delay execution of their policies.

Government of limited power need not be anemic gov- ernment. Assurance that rights are secure tends to di- minish fear and jealousy of strong government, and by making us feel safe to live under it makes for its better support. Without promise of a limiting Bill of Rights it is

whether school children, like the Gobitis children, must be excused from conduct required of all the other children in the promotion of national cohesion. .

(Italics ours.)

Id. at 595.

. ."

BOARD OF EDUCATION v. BARNETTE. 637 624

Opinion of the Court.

doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong gov- It is only to adhere as a means of strength to ernment. individual freedom of mind in preference to officially dis- ciplined uniformity for which history indicates a disap- pointing and disastrous end.

The subject now before us exemplifies this principle.

Free public education, if faithful to the ideal of secular in- struction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.

If it is to im- pose any ideological discipline, however, each party or denomination must seek to control, or failing that, to weaken the influence of the educational system. Observ- ance of the limitations of the Constitution will not weaken government in the field appropriate for its exercise.

2. It was also considered in the Gobitis case that func-

tions 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."

Id. at 598.

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 dis- cretionary 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 gov- ernment as mere platitudes.

Such Boards are numerous and their territorial jurisdic- tion often small. But small and local authority may feel less sense of responsibility to the Constitution, and agen- cies of publicity may be less vigilant in calling it to ac-

638

Opinion of the Court.

Tile action of Congress in making flag observance count. voluntary "r and respecting the conscience of the objector in a matter so vital as raising the Army I8 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.

3. The Gobitis opinion reasoned that this is a field

"where courts possess no marked and certainly no con- trolling competence," that it is committed to the legisla- tures as well as the courts to guard cherished liberties and that it is constitutionally appropriate to "fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena," since all the "effective means of inducing political changes are left free."

Id. at 597-598, 600.

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political contro- versy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections..

"Section 7 of House Joint Resolution 359, approved December 22, 1942, 56 Stat. 1074, 36 U. S. C. (1942 Supp.) § 172, prescribes no

"That the pledge of allegiance to the flag, 'I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all,' be ren- dered by standing with the right hand over the heart. However, civil- ians will always show full respect to the flag when the pledge is given by merely standing at attention, men removing the headdress . . ." I8 § 5 (a) of the Selective Training and Service Act of 1940, 50 U. S.

C. (App.) § 307 (g).

BOARD OF EDUCATION v. BARNETTE. 639 624

Opinion of the Court.

In weighing arguments of the parties it is important to distinguish between the due process clause of the Four- teenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regu- late, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect.

It is important to note that while it is the Fourteenth Amendment which bears directly upon the State it is the more specific limiting principles of the First Amendment that finally, govern this case.

Nor-does our duty to apply the Bill of Rights to asser- tions of official authority depend upon our possession of marked competence in the field where the invasion of rights occurs. True, the task of translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal government in the eighteenth century, into concrete restraints on officials dealing with the prob- lems of the twentieth century, is one to disturb self-confi- dence. These principles grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervi-

640

Opinion of the Court.

sion over men's affairs. We must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through ex- panded and strengthened governmental controls. These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment. But we act in these matters not by authority of our competence but by force of our commissions. We cannot, because of modest estimates of our competence in such specialties as public education, withhold the judg- ment that history authenticates as the function of this Court when liberty is infringed.

4. Lastly, and this is the very heart of the Gobitis

opinion, it reasons that "National unity is the basis of national security," that the authorities have "the right to select appropriate means for its attainment," and hence reaches the conclusion that such compulsory measures to- ward "national unity" are constitutional. Id. at 595.

Upon the verity of this assumption depends our answer in this case.

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 em- ployed is a permissible means for its achievement.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men.

Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or terri- torial security, support of a dynasty or regime, and par- ticular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity.

BOARD OF EDUCATION v. BARNETTE. 641 624

Opinion of the Court.

As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be.

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 educa- tional officials shall compel youth to unite in embracing.

Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies.

Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unifi- cation of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amend- ment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by con- sent 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.

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

642

Opinion of the Court.

and the rich cultural diversities that we owe to excep- tional 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 constella- tion, 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 circum- stances which permit an exception, they do not now occur to us. 19

We think the action of the local authorities in compel- ling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of in- tellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

The decision of this Court in Minersville School Dis- trict v. Gobitis and the holdings of those few per curiam decisions which preceded and foreshadowed it are over- ruled, and the judgment enjoining enforcement of the West Virginia Regulation is

Affirmed.

MR. JusTIcE ROBERTS and MR. JusTICE REED adhere to the views expressed by the Court in Minersville School

IoThe Nation .may raise armies and compel citizens to give mili- tary service. Selective Draft Law Cases, 245 U. S. 366.

It follows, of course, that those subject to military discipline are under many duties and may not claim many freedoms that we hold inviolable as to those in civilian life.

BOARD OF EDUCATION v. BARNETTE. 643 624

BLAcK and Douoms, JJ., concurring.

District v. Gobitis, 310 U. S. 586, and are of the opinion that the judgment below should be reversed.

MR. JUSTICE BLACK and MR. JusTIcE DouGLAS, con-

We are substantially in agreement with the opinion just read, but since we originally joined with the Court in the Gobitis case, it is appropriate that we make a brief state- ment of reasons for our change of view.

Reluctance to make the Federal Constitution a rigid bar against state regulation of conduct thought inimical to the public welfare was the controlling influence which moved us to consent to the Gobitis decision. Long re- flection convinced us that although the principle is sound, its application in the particular case was wrong. Jones v.

Opelika, 316 U. S. 584, 623. We believe that the statute before us fails to accord full scope to the freedom of re- ligion secured to the appellees by the First and Fourteenth Amendments.

The statute requires the appellees to participate in a ceremony aimed at inculcating respect for the flag and for this country. The Jehovah's Witnesses, without any de- sire to show disrespect for either the flag or the country, interpret the Bible as commanding, at the risk of God's dis- pleasure, that they not go through the form of a pledge of allegiance to any flag. The devoutness of their belief is evidenced by their willingness to suffer persecution and punishment, rather-than make the pledge.

No well-ordered society can leave to the individuals an absolute right to make final decisions, unassailable by the State, as to everything they will or will not do. The First Amendment does not go so far. Religious faiths, honestly held, do not free individuals from responsibility to conduct themselves obediently to laws which are either impera- tively necessary to protect society as a whole from grave

644

MunwRH, J., concurring.

and pressingly imminent dangers or which, without any general prohibition, merely regulate time, place or manner of religious activity. Decision as to the constitutionality of particular laws which strike at the substance of religious tenets and practices must be made by this Court. The duty is a solemn one, and in meeting it we cannot say that a failure, because of religious scruples, to assume a particu- lar physical position and to repeat the words of a patriotic formula creates a grave danger to the nation. Such a statutory exaction is a form of test oath, and the test oath has always been abhorrent in the United States.

Words uttered under coercion are proof of loyalty to nothing but self-interest. Love of country must spring from willing hearts and free minds, inspired by a fair ad- ministration of wise laws enacted by the people's elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflict- ing viewpoints consistent with a society of free men.

Neither our domestic tranquillity in peace nor our mar- tial effort in war depend on compelling little children to participate in a ceremony which ends in nothing for them but a fear of spiritual condemnation.

If, as we think, their fears are groundless, time and reason are the proper antidotes for their errors. The ceremonial, when en- forced against conscientious objectors, more likely to defeat than to serve its high purpose, is a handy imple- ment for disguised religious persecution. As such, it is inconsistent with our Constitution's plan and purpose.

I agree with the opinion of the Court and join in it.

The complaint challenges an order of the State Board of Education which requires teachers and pupils to participate in the prescribed salute to the flag. For refusal to con- form with the requirement, the State law prescribes ex-

BOARD OF EDUCATION v. BARNETTE. 645 624

MuRPHY, J., concurring.

pulsion. The offender is required by law to be treated as unlawfully absent from school and the parent or guardian is made liable to prosecution and punishment for such ab- sence. Thus not only is the privilege of public education conditioned on compliance with the requirement, but non- compliance is virtually made unlawful.

In effect com- pliance is compulsory and not optional.

It is the claim of appellees that the regulation is invalid as a restriction on religious freedom and freedom of speech, secured to them against State infringement by the First and Fourteenth Amendments to the Constitution of the United States.

A reluctance to interfere with considered state action, the fact that the end sought is a desirable one, the emotion aroused by the flag as a symbol for which we have fought and are now fighting again,-all of these are understand- able. But there is before us the right of freedom to be- lieve, freedom to worship one's Maker according to the dictates of one's conscience, a right which the Constitu- tion specifically shelters. Reflection has convinced me that as a judge I have no loftier duty or responsibility than to uphold that spiritual freedom to its farthest reaches.

The right of freedom of thought and of religion as guar- anteed by the Constitution against State action includes both the right to speak freely and the right to refrain from speaking at all, except insofar as essential operations of government may require it for the preservation of an orderly s9ciety,-as in the case of compulsion to give evi- dence in court. Without wishing to disparage the pur- poses and intentions of those who hope to inculcate senti- ments of loyalty and patriotism by requiring a declaration of allegiance as a feature of public education, or unduly belittle the benefits that may accrue therefrom, I am im- pelled to conclude that such a requirement is not essential to the maintenance of effective government and orderly society. To many it is deeply distasteful to join in a pub- lic chorus of affirmation of private belief. By some, in-

FRANKFURTER, J., dissenting.

cluding the members of this sect, it is apparently regarded as incompatible with a primary religious obligation and therefore a restriction on religious freedom. Official com- pulsion to affirm what is contrary to one's religious beliefs is the antithesis of freedom of worship which, it is well to recall, was achieved in this country only after what Jeffer- son characterized as the "severest contests in which I have ever been engaged." 1

I am unable to agree that the benefits that may accrue to society from the compulsory flag salute are sufficiently definite and tangible to justify the invasion of freedom and privacy that is entailed or to compensate for a restraint on the freedom of the individual to be vocal or silent accord- ing to his conscience or personal inclination. The trench- ant words in the preamble to the Virginia Statute for Re- ligious Freedom remain unanswerable: ". . . all attempts to influence [the mind] by temporal punishments, or bur- dens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, . . ." Any spark of love for country which may be generated in a child or his associates by forcing him to make what is to him an empty gesture and recite words wrung from him contrary to his religious beliefs is overshadowed by the desirability of preserving It is in that freedom freedom of conscience to the full.

and the example of persuasion, not in force and compul- sion, that the real unity of America lies.

One who belongs to the most vilified and persecuted minority in history is not likely to be insensible to the free- doms guaranteed by our Constitution. Were my purely personal attitude relevant I should wholeheartedly asso- ciate myself with the general libertarian views in the Court's opinion, representing as they do the thought and

1See Jefferson, Autobiography, vol. 1, pp. 53-59.

BOARD OF EDUCATION v. BARNETTE. 647 624

FRANKF RTER, J., dissenting.

action of a lifetime. But as judges we are neither Jew nor Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally bound by our judicial obligations whether we derive our citizenship from the earliest or the latest immigrants to these shores.

As a member of this Court I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge who must de- cide which of two claims before the Court shall prevail, that of a State to enact and enforce laws within its general competence or that of an. individual to refuse obedience because of the demands of his conscience, is not that of the It can never be emphasized too much ordinary person. that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench. The only opinion of our own even looking in that direction that is material is our opinion whether legislators could in reason have enacted such a law.

In the light of all the circumstances, including the history of this question in this Court, it would require more daring than I possess to deny that reasonable legislators could have taken the action which is before us for review. Most un- willingly, therefore, I must differ from my brethren with regard to legislation like this. I cannot bring my mind to believe that the "liberty" secured by the Due Process Clause gives this Court authority to deny to the State of West Virginia the attainment of that which we all rec- ognize as a legitimate legislative end, namely, the promo- tion of good citizenship, by employment of the means here chosen.

Not so long ago we were admonished that "the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the bal- lot and to the processes of democratic government."

FRANKDURTER, J., dissenting.

United States v. Butler, 297 U. S. 1, 79 (dissent). We have been told that generalities do not decide concrete cases. But the intensity with which a general principle is held may determine a particular issue, and whether we put first things first may decide a specific controversy.

The admonition that judicial self-restraint alone limits arbitrary exercise of our authority is relevant every time we are asked to nullify legislation. The Constitution does not give us greater veto power when dealing with one phase of "liberty" than with another, or when dealing with grade school regulations than with college regulations that offend conscience, as was the case in Hamilton v.

In neither situation is our func- Regents, 293 U. S. 245. tion comparable to that of a legislature or are we free to act as though we were a super-legislature. Judicial self-restraint is equally necessary whenever an exercise of political or legislative power- is challenged. There is no warrant in the constitutional basis of this Court's author- ity for attributing different r~les to it depending upon the nature of the challenge to the legislation. Our power does not vary according to the particular provision of the Bill of Rights which is invoked. The right not to have prop- erty taken without just compensation has, so far as the scope of judicial power is concerned, the same constitu- tional dignity as the right to be protected against unrea- sonable searches and seizures, and the latter has no less claim than freedom of the press or freedom of speech or In no instance is this Court the pri- religious freedom.

mary protector of the particular liberty that is invoked.

This Court has recognized, what hardly could be denied, that all the provisions of the first ten Amendments are "specific" prohibitions, United States v. Carolene Products Co., 304 U. S. 144, 152, n. 4. But each specific Amend- ment, in so far as embraced within the Fourteenth Amend- ment, must be equally respected, and the function of this

BOARD OF EDUCATION v. BARNETTE. 649 624

FRANKrTER, J., dissenting.

Court does not differ in passing on the constitutionality of legislation challenged under different Amendments.

When Mr. Justice Holmes, speaking for this Court, wrote that "it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts," Missouri,

K. & T. Ry. Co. v. May, 194 U. S. 267, 270, he went to the

very essence of our constitutional system and the demo- cratic conception of our society. He did not mean that for only some phases of civil government this Court was not to supplant legislatures and sit in judgment upon the right or wrong of a challenged measure. He was stat- ing the comprehensive judicial duty and r6le of this Court in our constitutional scheme whenever is sought to be nullified on any ground, namely, that respon- sibility for legislation lies with legislatures, answerable as they are directly to the people, and this Court's only and very narrow function is to determine whether within the broad grant of authority vested in legislatures they have exercised a judgment for which reasonable justifica- tion can be offered.

legislation

The framers of the federal Constitution might have chosen to assign an active share in the process of legisla- tion to this Court. They had before them the well-known example of New York's Council of Revision, which had been functioning since 1777. After stating that "laws in- consistent with the spirit of this constitution, or with the public good, may be hastily and unadvisedly passed," the state constitution made the judges of New York part of the legislative process by providing that "all bills which have passed the senate and assembly shall, before they become laws," be presented to a Council of which the judges constituted a majority, "for their revisal and con- sideration." Art. III, New York Constitution of 1777.

Judges exercised this legislative function in New York

650

FRNKFURTR, J., dissenting.

for nearly fifty years. See Art. I, § 12, New York Con- stitution of 1821. But the framers of the Constitution denied such legislative powers to the federal judiciary.

They chose instead to insulate the judiciary from the legislative function. They did not grant to this Court supervision over legislation.

The reason why from the beginning even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process. The fact that it may be an undemocratic aspect of our scheme of government does not call for its rejection or its disuse. But it is the best of reasons, as this Court has frequently recognized, for the greatest caution in its use.

The precise scope of the question before us defines the limits of the constitutional power that is in issue. The State of West Virginia requires all pupils to share in the salute to the flag as part of school training in citizenship.

The present action is one to enjoin the enforcement of this requirement by those in school attendance. We have not before us any attempt by the State to punish disobedient children or visit penal consequences on their parents. All that is in question is the right of the State to compel par- ticipation in this exercise by those who choose to attend the public schools.

We are not reviewing merely the action of a local school board. The flag salute requirement in this case comes be- fore us with the full authority of the State of West Virginia.

We are in fact.passing judgment on "the power of the State as a whole." Rippey v. Texas, 193 U. S. 504,509; Skiriotes

v. Florida, 313 U. S. 69, 79. Practically we are passing

upon the political power of each of the forty-eight states.

Moreover, since the First Amendment has been read into the Fourteenth, our problem is precisely the same as it would be if we had before us an Act of Congress for the District of Columbia. To suggest that we are here con-

BOARD OF EDUCATION v. BARNETTE. 651 624

FRANKFURTFR, J., dissenting.

cerned with the heedless action of some village tyrants is to distort the augustness of the constitutional issue and the reach of the consequences of our decision.

Under our constitutional system the legislature is charged solely with civil concerns of society. If the avowed or intrinsic legislative purpose is either to pro- mote or to discourage some religious community or creed, it is clearly within the constitutional restrictions imposed on legislatures and cannot stand. But it by no means fol- lows that legislative power is wanting whenever a general hon-discriminatory civil regulation in fact touches con- scientious scruples or religious beliefs of an individual or a group. Regard for such scruples or beliefs undoubtedly presents one of the most reasonable claims for the exertion of legislative accommodation.

It is, of course, beyond our power to rewrite the State's requirement, by providing exemptions for those who do not wish to participate in the flag salute or by making some other accommodations to meet their scruples. That wisdom might suggest the making of such accommodations and that school admin- istration would not find it too difficult to make them and yet maintain the ceremony for those not refusing to con- form, is outside our province to suggest. Tact, respect, and generosity toward variant views will always commend themselves to those charged with the duties of legislation so as to achieve a maximum of good will and to require a minimum of unwilling submission to a general law. But the real question is, who is to make such accommodations, the courts or the legislature?

This is no dry, technical matter.

It cuts deep into one's conception of the democratic process-it concerns no less the practical differences between the means for making these accommodations that are open to courts and to leg- islatures. A court can only strike down.

It can only It cannot modify or say "This or that law is void." qualify, it cannot make exceptions to a general require-

531559-44 "45

652

FwAxKnmnu, J., dissenting.

ment. And it strikes down not merely for a day. At least the finding of unconstitutionality ought not to have ephemeral significance unless the Constitution is to be reduced to the fugitive importance of mere legislation.

When we are dealing with the Constitution of the United States, and more particularly with the great safeguards of the Bill of Rights, we are dealing with principles of liberty and justice "so rooted in the traditions and conscience of our people as to be ranked as fundamental"-something without which "a fair and enlightened system of justice would be impossible." Palko v. Connecticut, 302 U. S. 319 If the 325; Hurtado v. California, 110 U. S. 516, 530, 531. function of this Court is to be essentially no different from that of a legislature, if the considerations governing consti- tutional construction are to be substantially those that un- derlie legislation, then indeed judges should not have life tenure and they should be made directly responsible to the electorate. There have been many but unsuccessful proposals in the last sixty years to amend the Constitution to that end. See Sen. Doc. No. 91, 75th Cong., 1st Sess., pp. 248-51.

Conscientious scruples, all would admit, cannot stand against every legislative compulsion to do positive acts in conflict with such scruples. We have been told that such compulsions override religious scruples only as to major concerns of the state. But the determination of what is major and what is minor itself raises questions of policy.

For the way in which men equally guided by reason ap- praise importance goes to the very heart of policy.

Judges should be very diffident in setting their judgment against that of a state in determining what is and what is not a major concern, what means are appropriate to proper ends, and what is the total social cost in striking the balance of imponderables.

What one can say with assurance is that the history out of which grew constitutional provisions for religious equal-

BOARD OF EDUCATION v. BARNETTE. 653 624

FRNKURTE, J., dissenting.

ity and the writings of the great exponents of religious freedom-Jefferson, Madison, John Adams, Benjamin Franklin-are totally wanting in justification for a claim by dissidents of exceptional immunity from civic measures of general applicability, measures not in fact disguised as- saults upon such dissident views. The great leaders of the American Revolution were determined to remove po- litical support from every religious establishment. They put on an equality the different religious sects--Episcopa- lians, Presbyterians, Catholics, Baptists, Methodists, Quakers, Huguenots--which, as dissenters, had been un- der the heel of the various orthodoxies that prevailed in different colonies. So far as the state was concerned, there was to be neither orthodoxy nor heterodoxy.. And so Jefferson and those who followed him wrote guaranties of religious freedom into our constitutions Religious minorities as well as religious majorities were to be equal in the eyes of the political state. But Jefferson and the others also knew that minorities may disrupt society.

It never would have occurred to them to write into the Con- stitution the subordination of the general civil authority of the state to sectarian scruples.

.The constitutional protection of religious freedom ter- minated disabilities, it did not create new privileges. It gave religious equality, not civil immunity.

Its essence is freedom from conformity to religious dogma, not free- dom from conformity to law because of religious dogma.

Religious loyalties may be exercised without hindrance from the state, not the state may not exercise that which except by leave of religious loyalties is within the domain of temporal power. Otherwise each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose biiness it is -to make laws.

The prohibition against any religious establishment by the government placed denominations on an equal foot-

FRANKFYRThR, J., dissenting.

ing-it assured freedom from support by the government to any mode of worship and the freedom of individuals to support any mode of worship. Any person may therefore believe or disbelieve what he pleases. He may practice what he will in his own house of worship or publicly within the limits of public order. But the lawmaking authority is not circumscribed by the variety of religious beliefs, otherwise the constitutional guaranty would be not a pro- tection of the free exercise of religion but a denial of the exercise of legislation.

The essence of the religious freedom guaranteed by our Constitution is therefore this: no religion shall either re- ceive the state's support or incur its hostility. Religion is outside the sphere of political government. This does not mean that all matters on which religious organizations or beliefs may pronounce are outside the sphere of govern- ment. Were this so, instead of the separation of church and state, there would be the subordination of the state on any matter deemed within the sovereignty of the religious conscience. Much that is the concern of temporal au- thority affects the spiritual interests of men. But it is not enough to strike down a non-discriminatory law that it may hurt or offend some dissident view.

It would be too easy to cite numerous prohibitions and injunctions to which laws run counter if the variant interpretations of the Bible were made the tests of obedience to law. The validity of secular laws cannot be measured by their con- formity to religious doctrines. It is only in a theocratic state that ecclesiastical doctrines measure legal right or wrong.

An act compelling profession of allegiance to a religion, no matter how subtly or tenuously promoted, is bad. But an act promoting good citizenship and national allegiance is within the domain of governmental authority and is therefore to be judged by the same considerations of power and of constitutionality as those involved in the many

BOARD OF EDUCATION v. BARNETTE. 655 624

FRANKVRTR, J., disenting.

claims of immunity from civil obedience because of reli- gious scruples.

That claims are pressed on behalf of sincere religious convictions does not of itself establish their constitutional validity. Nor does waving the banner of religious free- dom relieve us from examining into- the power we are asked to deny the states. Otherwise the doctrine of sepa- ration of church and state, so cardinal in the history of this nation and for the liberty of our people, would mean not the disestablishment of a state church but the establish- ment of all churches and of all religious groups.

The subjection of dissidents to the general requirement * of saluting the flag, as a measure conducive to the training of children in good citizenship, is very far from being the first instance of exacting obedience to general laws that have offended deep religious scruples. Compulsory vac- cination, see Jacobson v. Massachusetts, 197 U. S. 11, food inspection regulations, see Shapiro v. Lyle, 30 F. 2d 971, the obligation to bear arms, see Hamilton v. Regents, 293

U. S. 245, 267, testimonial duties, see Stansbury v. Marks,

2 Dall. 213, compulsory medical treatment, see People v.

Vogelgesang, 221 N. Y. 290, 116 N. E. 977-these are but illustrations of conduct that has often been compelled in the enforcement of legislation of general applicability even though the religious consciences of particular indi- viduals rebelled at the exaction.

Law is concerned with external behavior and not with the inner life of man. It rests in large measure upon compulsion.

Socrates lives in history partly because he gave his life for the conviction that duty of obedience to secular law does not presuppose consent to its enactment or belief in its virtue. The consent upon which free gov- ernment rests is the consent that comes from sharing in the process of making and unmaking laws. The state is not shut out from a domain because the individual con- science may deny the state's claim. The individual con-

FuNKFRT, J., dissenting.

science may profess what faith it chooses.

It may affirm and promote that faith-in the language of the Consti- tution, it may "exercise" it freely-but it cannot thereby restrict community action through political organs in mat- ters of community concern, so long as the action is not asserted in a discriminatory way either openly or by stealth. One may have the right to practice one's reli- gion and at the same time owe the duty of formal obedi- ence to laws that run counter to one's beliefs. Com- pelling belief implies denial of opportunity to combat it and to assert dissident views. Such compulsion is one thing. Quite another matter is submission to conformity of action while denying its wisdom or virtue and with ample opportunity for seeking its change or abrogation.

In Hamilton v. Regents, 293 U. S. 245, this Court unani- mously held that one attending a state-maintained uni- versity cannot refuse attendance on courses that offend his religious scruples. That decision is not overruled to- day, but is distinguished on the ground that attendance at'the institution for highet education was voluntary and therefore a student could not refuse compliance with its conditions and yet take -advantage of its opportunities.

But West Virginia does not compel the attendance at its public schools of the children here concerned, West Vir- ginia does not so compel, for it cannot. This Court denied the right of a state to require its children to attend public schools. Pierce v. Society of Sisters, 268 U. S. 510. As to its public schools, West Virginia imposes conditions which it deems necessary in the development of future citizens precisely as California deemed necessary the requirements that offended the student's conscience in the Hamilton case. The need for higher education and the duty of the state to provide it as part of a public edu- cational system, are part of the democratic faith of most of our states. The right to secure such education in in- stitutions not maintained by public funds is unquestioned.

BOARD OF EDUCATION v. BARNETTE. 657 624

Fimmmurm, J., dissenting.

But the practical opportunities for obtaining what is be- coming in increasing measure the conventional equipment of American youth may be no less burdensome than that which parents are increasingly called upon to bear in sending their children to parochial schools because the education provided by public schools, though supported by their taxes, does not satisfy their ethical and, educa- tional necessities. I find it impossible, so far as consti- tutional power is concerned, to differentiate what was sanctioned in the Hamilton case from what is nullified in this case. And for me it still'remains to be explained why the grounds of Mr. Justice Cardozo's opinion in Hamilton

v. Regents, supra, are not sufficient to sustain the flag

salute requirement. Such a requirement, like the re- quirement in the Hamilton case, "is not an interference by the state with the free exercise of religion when the liberties of the constitution axe read in the light of a cen- tury and a half of history during days of peace and war."

293 U. S. 245, 266. The religious worshiper, "if his lib- erties were to be thus extended, might refuse to contribute taxes . . . in furtherance of any other end condemned by his conscience as irreligious or immoral. The right of private judgment has never yet been so exalted above the powers and the compulsion of the agencies of govern- ment."

Id., at 268.

Parents have the privilege of choosing which schools they wish their children to attend. And the question here is whether the state may make certain requirements that seem to it desirable or important for the proper education of those future citizens who go to schools maintained by the states, or whether the pupils in those schools may be relieved from those requirements if they run counter to the consciences of their parents. Not only have parents the right to send children to schools of their own choosing but the state has no right to bring such schools "under a strict governmental control" or give "affirmative direction

FR&TnmT=, J., dissenting.

concerning the intimate and essential details of such schools, entrust their control to public officers, and deny both owners and patrons reasonable choice and discretion in respect of teachers, curriculum, and textbooks." Far- rington v. Tokushige, 273 U. S. 284, 298. Why should not the state likewise have constitutional power to make reasonable provisions for the proper instruction of chil- dren in schools maintained by it?

When dealing with religious scruples we are dealing with an almost numberless variety of doctrines and be- liefs entertained with equal sincerity by the particular groups for which they satisfy man's needs in his relation to the mysteries of the universe. There are in the United States more than 250 distinctive established religious de- nominations. In the State of Pennsylvania there are 120 of these, and in West Virginia as many as 65. But if religious scruples afford immunity from civic obedience to laws, they may be invoked by the religious beliefs of any individual even though he holds no membership in any sect or organized denomination. Certainly this Court cannot be called upon to determine what claims of con- science should be recognized and what should be rejected as satisfying the "religion" which the Constitution pro- tects. That would indeed resurrect the very discrimina- tory treatment of religion which the Constitution sought forever to forbid. And so, when confronted with the task of considering the claims of immunity from obedience to a law dealing with civil affairs because of religious scruples, we cannot conceive religion more narrowly than in the terms in which Judge Augustus N. Hand recently char-

"It is unnecessary to attempt a definition of religion; the content of the term is found in the history of the human race and is incapable of comppession into a few words. Re- ligious belief arises from a sense of the inadequacy of rea-

BOARD OF EDUCATION v. BARNETTE. 659 624

FRAxNrmR, J., dissenting.

son as a means of relating the individual to his fellowmen and to his universe ....

[It] may justly be regarded as a response of the individual to an inward mentor, call it conscience or God, that is for many persons at the present time the equivalent of what has always been thought a religious impulse." United States v. Kauten, 133 F. 2d 703, 708.

Consider the controversial issue of compulsory Bible- reading in public schools. The educational policies of the states are in great conflict over this, and the state courts are divided in their decisions on the issue whether the re- quirement of Bible-reading offends constitutional provi- sions dealing with religious freedom. The requirement of Bible-reading has been justified by various state courts as an appropriate means of inculcating ethical precepts and familiarizing pupils with the most lasting expression of great English literature.

Is this Court to over- throw such variant state educational policies by denying states the right to entertain such convictions in regard to their school systems, because of a belief that the King James version is in fact a sectarian text to which parents of the Catholic and Jewish faiths and of some Protestant persuasions may rightly object to having their children exposed? On the other hand the religious consciences of some parents may rebel at the absence of any Bible-read- ing in the schools. See Washington ex rel. Clithero v.

Showalter, 284 U. S. 573. Or is this Court to enter the old controversy between science and religion by unduly de- fining the limits within which a state may experiment with its school curricula? The religious consciences of some parents may be offended by subjecting their children to the Biblical account of creation, while another state may offend parents by prohibiting a teaching of biology that contradicts such Biblical account. Compare Scopes v.

State, 154 Tenn. 105, 289 S. W. 363. What of conscien-

J., dissenting.

tious objections to what is devoutly felt by parents to be the poisoning of impressionable minds of children by chauvinistic teaching of history? This is very far from a fanciful suggestion for in the belief of many thoughtful people nationalism is the seed-bed of war.

There are other issues in the offing which admonish us of the difficulties and complexities that confront states in the duty of administering their local school systems.

All citizens are taxed for the support of public schools al- though this Court has denied the right of a state to compel all children to go to such schools and has recognized the right of parents to send children to privately maintained schools. Parents who are dissatisfied with the public schools thus carry a double educational burden. Children who go to public school enjoy in many states derivative advantages such as free textbooks, free lunch, and free transportation in going to and from school. What of the claims for equality of treatment of those parents who, because of religious scruples, cannot send their children to public schools? What of the claim that if the right to send children to privately maintained schools is partly an exercise of religious conviction, to render effective this right it should be accompanied by equality of treatment by the state in supplying free textbooks, free lunch, and free transportation to childreia who go to private schools?

What of the claim that such grants are offensive to the cardinal constitutional. doctrine of separation of church and state?

These questions assume increasing importance in view of the steady growth of parochial schools both in number and in population. I am not borrowing trouble by adum- brating these issues nor am I parading horrible examples of the consequences of today's decision. I am aware that we must decide the case before us and not some other case.

But that does not mean that a case is dissociated from the past and unrelated to the future. We must decide this

BOARD OF EDUCATION v. BARNETTE. 661 624

FNKFURTER, J., dissenting.

case with due regard for what went before and no less regard for what may come after.

Is it really a fair con- struction of such a fundamental concept as the right freely to exercise one's religion that a state cannot choose to re- quire all children who attend public school to make the same gesture of allegiance to the symbol of our national life because it may offend the conscience of some children, but that it may compel all children to attend public school to listen to the King James version although it may offend the consciences of their parents? And what of the larger issue of claiming immunity from obedience to a general civil regulation that has a reasonable relation to a public purpose within the general competence of the state? See Pierce v. Society of Sisters, 268 U. S. 510, 535. Another member of the sect now before us insisted that in for- bidding her two little girls, aged nine and twelve, to dis- tribute pamphlets Oregon infringed her and their freedom of religion in that the children were engaged in "preach- ing the gospel of God's Kingdom." A procedural tech- nicality led to the dismissal of the case, but the problem remains. McSparran v. Portland, 318 U. S. 768.

These questions are not lightly stirred. They touch the most delicate issues and their solution challenges the best wisdom of political and religious statesmen. But it presents awful possibilities to try to encase the solu- tion, of these problems within the rigid prohibitions of unconstitutionality.

We are told that a flag salute is a doubtful substitute for adequate understanding of our institutions. The states that require such a school exercise do not have to justify it as the only means for promoting good citizenship in children, but merely as one of diverse means for ac- complishing a worthy end. We may deem it a foolish measure, but the point is that this Court is not the organ of government to resolve doubts as to whether it will ful- fill its purpose. Only if there be no doubt that any rea-

FANKFUUTFR, J., dissenting.

sonable. mind could entertain can we deny to the states the right to resolve doubts their way and not ours.

That which to the majority may seem essential for the welfare of the state may offend the consciences of a mi- nority. But, so long as no inroads are made upon the actual exercise of religion by the minority, to deny the political power of the majority to enact laws concerned with civil matters, simply because they may offend the consciences of a minority, really means that the consciences of a minority are more sacred and more enshrined in the Constitution than the consciences of a majority.

We are told that symbolism is a dramatic but primi- tive way of communicating ideas. Symbolism is ines- capable. Even the most sophisticated live by symbols.

But it is not for this Court to make psychological judg- ments as to the effectiveness of a particular symbol in inculcating concededly indispensable feelings, particu- larly if the state happens to see fit to utilize the symbol that represents our heritage and our hopes. And surely only flippancy could be responsible for the suggestion that constitutional'validity of a requirement to salute our flag implies equal validity of a requirement to salute a dictator.

The significance of a symbol lies in what it represents. To reject the swastika does not imply rejection of the Cross.

And so it bears repetition to say that it mocks reason and denies our whole history to find in the allowance of a requirement to salute our flag on fitting occasions the seeds of sanction for obeisance to a leader. To deny the power to employ educational symbols is to say that the state's educational system may not stimulate the imagi- nation because this may lead to unwise stimulation.

The right of West Virginia to utilize the flag salute as part of its educational process is denied because, so it is argued, it cannot be justified as a means of meeting a "clear and present danger" to national unity. In passing it deserves to be noted that the four cases which unani-

BOARD OF EDUCATION v. BARNETTE. 663 624

FRANxpUaTER, J., dissenting.

mously sustained the power of states to utilize such an educational measure arose and were all decided before the present World War. But to measure the state's power to make such regulations as are here resisted by the imminence of national danger is wholly to miscon- ceive the origin and purpose of the concept of "clear and present danger." To apply such a test is for the Court to assume, however unwittingly, a legislative responsibil- ity that does not belong to it. To talk about "clear and present danger" as the touchstone of allowable edu- cational policy by the states whenever school curricula may impinge upon the boundaries of individual con-, science, is to take a felicitous phrase out of the context of the particular situation where it arose and for which it was adapted. Mr. Justice Holmes used the phrase "clear and present danger" in a case involving mere speech as a means by which alone to accomplish sedition in time of war. By that phrase he meant merely to indicate that, in view of the protection given to utterance by the First Amendment, in order that mere utterance may not be proscribed, "the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the sub- stantive evils that Congress has a right to prevent."

Schenck v. United States, 249 U. S. 47, 52. The "sub- stantive evils" about which he was speaking were induce- ment of insubordination in the military and naval forces of the United States and obstruction of enlistment while the country was at war. He was not enunciating a formal rule that there can be no restriction upon speech and, still less, no compulsion where conscience balks, unless imminent danger would thereby be wrought "to our institutions or our government."

The flag salute exercise has no kinship whatever to the oath tests so odious in history. For the oath test was one of the instruments for suppressing heretical beliefs.

FRAuNKFuRTE, J., dissenting.

Saluting the flag suppresses no belief nor curbs it. Chil- dren and their parents may believe what they please, avow It is not even remotely sug- their belief and practice it. gested that the requirement for saluting the flag involves the slightest restriction against the fullest opportunity on the part both of the children and of their parents to dis- avow as publicly as they choose to do so the meaning that others attach to the gesture of salute. All channels of affirmative free expression are open to both children and parents. Had we before us any act of the state putting the slightest curbs upon such free expression, I should not lag behind any member of this Court in striking down such an invasion of the right to freedom of thought and freedom of speech protected by the Constitution.

I am fortified in my view of this case by the history of the flag salute controversy in this Court. Five times has the precise question now before us been adjudicated.

Four times the Court unanimously found that the re- quirement of such a school exercise was not beyond the powers of the states. Indeed in the first three cases to come before the Court the constitutional claim now sus- tained was deemed so clearly unmeritorious that this Court dismissed the appeals for want of a substantial federal question. Leoles v. Landers, 302 U. S. 656; Hering

v. State Board of Education, 303 U. S. 624; Gabrielli v.

In the fourth case the Knickerbocker, 306 U.' S. 621. judgment of the district court upholding the state law was summarily affirmed on the authority of the earlier cases. Johnson v. Deerfield, 306 U. S. 621. The fifth case, Minersville District v. Gobitis, 310 U. S. 586, was brought here because the decision of the Circuit Court of Appeals for the Third Circuit ran counter to our rulings.

They were reaffirmed after full consideration, with one Justice dissenting.

What may be even more significant than this uniform recognition of state authority is the fact that every Jus-

BOARD OF EDUCATION v. BARNETTE. 665 624

FRAn KU=R, J., dissenting.

tice-thirteen in all-who has hitherto participated in .judging this matter has at one or more times found no constitutional infirmity in what is now condemned.

Only the two Justices sitting for the first time on this ffatter have not heretofore found this legislation inoffen- sive to the "liberty" guaranteed by the Constitution.

And among the Justices who sustained this measure were outstanding judicial leaders in the zealous enforcement of constitutional safeguards of civil liberties-men like Chief Justice Hughes, Mr. Justice Brandeis, and Mr. Jus- tice Cardozo, to mention only those no longer on the Court.

One's conception of the Constitution cannot be severed from one's conception of a judge's function in applying it. The Court has no reason for existence if it merely re- flects the pressures of the day. Our system is built on the faith that men set apart for this special function, freed from the influences of immediacy and from the de- flections of worldly ambition, will become able to take a view of longer range than the period of responsibility entrusted to Congress and legislatures. We are dealing with matters as to which legislators and voters have con- flicting views. Are we as judges to impose our strong convictions on where wisdom lies? That which three years ago had seemed to five successive Courts to lie within permissible areas of legislation is now outlawed by the deciding shift of opinion of two Justices. What rea- son is there to believe that they or their successors may not have another view a few years hence?

Is that which was deemed to be of so fundamental a nature as to be written into the Constitution to endure for all times to be the sport of shifting winds of doctrine? Of course, judicial opinions, even as to questions of constitution- ality, are not immutable. As has been true in the past, the Court will from time to time reverse its position.

But I believe that never before these Jehovah's Witnesses

FANKU RTE, J., dissenting.

cases (except for minor deviations subsequently re- traced) has this Court overruled decisions so as to restrict the powers of democratic government. Always hereto- fore, it has withdrawn narrow views of legislative author- ity so as to authorize what formerly it had denied.

In view of this history it must be plain that what thirteen Justices found to be within the constitutional authority of a state, legislators can not be deemed un- reasonable in enacting. Therefore, in denying to the states what heretofore has received such impressive ju- dicial sanction, some other tests of unconstitutionality must surely be guiding the Court than the absence of a rational justification for the legislation. But I know of no other test which this Court is authorized to apply in nullifying legislation.

In the past this Court has from time to time set its views of policy against that embodied in legislation by finding laws in conflict with what was called the "spirit of the Constitution." Such undefined destructive power was not conferred on this Court by the Constitution. Before a duly enacted law can be judicially nullified, it must be forbidden by some explicit restriction upon political au- thority in thp Constitution. Equally inadmissible is the claim to strike down legislation because to us as individuals it seems opposed to the "plan and purpose" of the Consti- tution. That is too tempting a basis for finding in one's personal views the purposes of the Founders.

The uncontrollable power wielded by this Court brings it very close to the most sensitive areas of public affairs.

As appeal from legislation to adjudication becomes more frequent, and its consequences more far-reaching, judicial self-restraint becomes more and not less important, lest we unwarrantably enter social and political domains wholly outside our concern. I think I appreciate fully the objections to the law before us. But to deny that it presents a question upon which men might reasonably

BOARD OF EDUCATION v. BARNETTE. 667 624

FzN;KPRTER, J., dissenting.

differ appears to me to be intolerance. And since men may so reasonably differ, I deem it beyond my constitu- tional power to assert my view of the wisdom of this law against the view of the State of West Virginia.

Jefferson's opposition to judicial review has not been accepted by history, but it still serves as an admonition against confusion between judicial and political functions.

As a rule of judicial self-restraint, it is still as valid as Lincoln's admonition. For those who pass laws not only are under duty to pass laws. They are also under duty to observe the Constitution. And even though legislation relates to civil liberties, our duty of deference to those who have the responsibility for making the laws is no less relevant or less exacting. And this is so especially when we consider the accidental contingencies by which one man may determine constitutionality and thereby confine the political power of the Congress of the United States and the legislatures of forty-eight states. The attitude of ju- dicial humility which these considerations enjoin is not an abdication of the judicial function.

It is a due ob- servance of its limits. Moreover, it is to be borne in mind that in a question like this we are not passing on the proper distribution of political power as between the states and the central government. We are not discharging the basic function of this Court as the mediator of powers within the federal system. To strike down a law like this is to deny a power to all government.

The whole Court is conscious that this case reaches ultimate questions of judicial power and its relation to our scheme of government.

It is appropriate, therefore, to recall an utterance as wise as any that I know in analyz- ing what is really involved when the theory of this Court's function is put to the test of practice. The analysis is that

". .. there has developed a vast and growing increase of judicial interference with legislation. This is a very differ-

531559-44-46

668

FaiN.FUrTm, J., dissenting.

ent state of things from what our fathers contemplated, a century and more ago, in framing the new system. Sel- dom, indeed, as they imagined, under our system, would this great, novel, tremendous power of the courts be ex- erted,-would this sacred ark of the covenant be taken from within the veil. Marshall himself expressed truly one aspect of the matter, when he said in one of the later years of his life: 'No questions can be brought before a judicial tribunal of greater delicacy than those which in- volve the constitutionality of legislative acts. If they become indispensably necessary to the case, the court must meet and decide them; but if the case may be deter- mined on other grounds, a just respect for the legislature requires that the obligation of its laws should not be unnecessarily and wantonly assailed.' And again, a little earlier than this, he laid down the one true rule of duty for the courts. When he went to Philadelphia at the end of September, in 1831, on that painful errand of which I have spoken, in answering a cordial tribute from the bar of that city he remarked that if he might be permitted to claim for himself and his associates any part of the kind things they had said, it would be this, that they had 'never sought to enlarge the judicial power beyond its proper bounds, nor feared to carry it to the fullest extent that duty required.'

"That is the safe twofold rule; nor is the first part of it any whit less important than the second; nay, more; today it is the part which most requirbs to be emphasized.

For just here comes in a consideration of very great weight.

Great and, indeed, inestimable as are the advantages in a popular government of this conservative influence,-the power of the judiciary to disregard unconstitutional leg- islation,-it should be remembered that the exercise of it, even when unavoidable, is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary If the decision in way, and correcting their own errors.

Munn v. Illinois and the 'Granger Cases,' twenty-five years ago, and in the 'Legal Tender Cases,' nearly thirty years

BOARD OF EDUCATION v. BARNETTE. 669 624

FuANKFmmRTE, J., dissenting.

ago, had been different; and the legislation there in ques- tion, thought by many to be unconstitutional and by many more to be ill-advised, had been set aside, we should have been saved some trouble and some harm. But I Venture to think that the good which came to the country and its people from the vigorous thinking that had to be done in the political debates that followed, from the infiltra- tion through every part of the population of sound ideas and sentiments, from the rousing into activity' of opposite elements, the enlargement of ideas, the strengthening of moral fibre, and the growth of political experience that came out of it all,-that all this far more than outweighed any evil which ever flowed from the refusal of the court to interfere with the work of the legislature.

"The tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people, and- to deaden its sense of moral responsibility.

It is no light thing to do that.

"What can be done? It is the courts that can do most to cure the evil; and the opportunity is a very great one.

Let them resolutely adhere to first principles. Let them consider how narrow is the function which the constitu- tions have conferred on them-the office merely of decid- ing litigated cases; how large, therefore, is the duty in- trusted to others, and above all to the legislature.

It is that body which is charged, primarily, with the duty of judging of the constitutionality of its work. The consti- tutions generally give them no authority to call upon a court for advice; they must decide for themselves, and the courts may never be able to say a word. Such a body, charged, in every State, with almost all the legislative power of the people, is entitled to the most entire and real respect; is entitled, as among all rationally permis- sible opinions as to what the constitution allows, to its own choice. Courts, as has often been said, are not to think of the legislators, but of the legislature-the great, continuous body itself, abstracted from all the transitory individuals who may happen to hold its power.

It is this majestic representative of the people whose action is in question, a cordinate department of the government,

670

J., dissenting.

charged with the greatest functions, and invested, in con- templation of law, with whatsoever wisdom, virtue, and knowledge the exercise of such functions requires.

"To set aside the acts of such a body, representing in its own field, which is the very highest of all, the ultimate sovereign, should be a solemn, unusual, and painful act.

Something is wrong when it can ever be other than that.

And if it be true that the holders of legislative power are careless or evil, yet the constitutional duty of the court remains untouched; it cannot rightly attempt to protect the people, by undertaking a function not its own. On the other hand, by adhering rigidly to its own duty, the court will help, as nothing else can, to fix the spot where respon- sibility lies, and to bring down on that precise locality the thunderbolt of popular condemnation. The judiciary, today, in dealing with the acts of their cordinate legis- lators, owe to the country no greater or clearer duty than that of keeping their hands off these acts wherever it is possible to do it. For that course-the true course of judicial duty always-will powerfully help to bring the people and their representatives to a sense of their own responsibility. There will still remain to the judiciary an ample field for the determinations of this remarkable jurisdiction, of which our American law has so much reason to be proud; a jurisdiction which has had some of its chief illustrations and its greatest triumphs, as in Mar- shall's time, so in ours, while the courts were refusing to exercise it." J. B. Thayer, John Marshall, (1901) 104-10.

Of course patriotism can not be enforced by the flag salute. But neither can the liberal spirit be enforced by judicial invalidation of illiberal legislation. Our constant preoccupation with the constitutionality of legislation rather than with its wisdom tends to preoccupation of the American mind with a false value. The tendency of fo- cussing attention on constitutionality is to make consti- tutionality synonymous with wisdom, to regard a law as all right if it is constitutional. Such an attitude is a great enemy of liberalism. Particularly in legislation affecting freedom of thought and freedom of speech much which should offend a free-spirited society is constitutional. Re-

I. C. C. v. INLAND WATERWAYS CORP. 671 624

Syllabus.

liance for the most precious interests of civilization, there- fore, must be found outside of their vindication in courts of law. Only a persistent positive translation of the faith of a free society into the convictions and habits and actions of a community is the ultimate reliance against unabated temptations to fetter the human spirit.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES

No. 175. Argued January 11, 12, 1943.-Decided June 14, 1943.

Proportional rates on reshipments from Chicago to eastern destinations of grain coming from distant points Northwest on through shipment with transit privileges and arriving at Chicago by rail or by lake steamer, became applicable by reason of tariff wordings to grain coming from points close to Chicago arriving by barge over the Illinois Waterways route which was established after the tariffs were adopted. The railroads filed tariff amendments which would deny to the ex-barge grain the privilege of moving eastward on the proportional rates, and remit it to the higher local rates which grain entering Chicago by truck or from local origins by rail was

1. That an order by the Interstate Commerce Commission in a

proceeding under § 15 (7) of the Interstate Commerce Act, which relieved the proposed tariff amendments from suspension, as not "unlawful," but which did not prevent future adjustments on spe- cific complaint of the rates on the ex-barge traft, was a determina- tion within the administrative competency of the Commission with which the District Court should not have interfered. P. 685.

2. Proportional rates differing from each other according to the

origin of the commodity may be fixed lower than local rates and may apply to outbound movements after stopover in transit. P. 684.

3. Since the Commission refused to approve or prescribe the

rates here in controversy, they stand only as carrier-made rates and are subject to possible recovery of reparations. P. 686.

4. To perpetuate the existing rate structure by sustaining the

District Court's injunction would favor the ex-barge grain over grain