The Right To Be Unpatriotic
posted by Erica Goldberg
I feel great pride in being American. America does not have clean hands with respect to many of its international dealings, and I feel shame and sadness in that, but I believe strongly in many quintessentially American ideals- like diversity, meritocracy, autonomy, and New York pizza.
One of the things that fuels my patriotism is our acceptance of those who express unpatriotic sentiments. My two favorite Supreme Court cases concern the right to be unpatriotic. In honor of the Fourth of July, I will be ruminating upon West Virginia v. Barnette and Wooley v. Maynard.
Barnette held that the right to freedom of conscience prevents public schools from forcing students to recite the pledge of allegiance. According to Justice Jackson, “no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing.” These words remain true today, although in different contexts. Wooley held, again as a First Amendment value, that New Hampshire cannot force its citizens to display license plates carrying the motto “Live Free or Die.” Of course, the precious irony in both of these cases is that the government was compelling citizens to pledge loyalty to concepts of liberty. But, in the end, actual liberty prevailed.
The fact that burning the flag cannot be specifically outlawed, thanks to Texas v. Johnson, is what gives the flag its power. Feel free to share with me your favorite Supreme Court cases. (My third favorite is Schmerber v. California, because I enjoy the nuances in self-incrimination law, but that’s not as relevant to the Fourth.)