Document Type

Working Paper

Publication Date

5-13-2019

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Legal Anthropology eJournals; LSN Subject Matter eJournals; AARN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network; Anthropology & Archaeology Research Network

Abstract

This article written for a symposium marking the 75th anniversary of West Virginia State Board of Education v Barnette offers a close reading of Justice Jacksons opinion for the Court In doing so it offers an implicit and explicit tribute to Vincent Blasi whose teaching and writing have emphasized the value of deep careful engagement with the language and arguments of a single text such as a judicial opinion and who has been an inspiration to me and many other contemporary First Amendment scholars brbrThis close reading explores a gallery of passages from Barnette that have received relatively little scholarly attention largely because Jacksons arresting fixed star passage has monopolized much of the discussion But other passages in the opinion help reveal additional important points about the case with important broader implications They suggest something about why Jackson treated this as a speech rather than a religion case and as an individual liberty case rather than an equal treatment case They have implications for arguments about thirdparty harms government nonendorsement student speech and hecklers veto doctrine And they underscore the importance of Jacksons description of an autonomous sphere of intellect and spirit and of the limits of state power in this area Perhaps much more than has been recognized Barnette is a paean to the sovereignty of the mind and in doing so it treats this realm as much or more as a matter of state noninterference than as a subject for measured judicial balancing brbrAlthough I focus closely on the text of the opinion itself I offer some larger assessments of Barnettes condition today I make two general observations First on the one hand Barnette had an excellent 75th anniversary year with citations and discussions in major Supreme Court decisions suggesting its stock is high On the other I suggest that it is in much poorer health in academic circles A striking number of scholarly discussions of current issues such as the wedding vendor cases omit Barnette altogether I suggest that these omissions are evidence of a deeper discomfort with Barnette And for good reason As this close reading reveals the words and deeper music of Barnette are in genuine tension with current popular positions on these issues and suggest that at some point these scholars need to engage directly and seriously with Barnette Second I argue that in interesting ways Barnette is a kind of precapitulation of much that happened in First Amendment law in the 75 years that followed it This is true not just in the sense that Barnette positively inspired a great deal of First Amendment doctrine but also in the sense that much of the jurisprudence that followed consisted of efforts to cabin Barnette and its implications and to build safety valves around it

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