Fourth, the meaning of freedom of expression generalized the court's judgment has far-reaching implications
Although the court arguments in the case ended on March 11, 1943, the Supreme Court deliberately chose June 14, the day of the United States Flag Day, to render its decision. It upheld the original judgment of the local court by a vote of 6 to 3, which turned out to be the opposite of three years ago. This is the fastest and most radical change in the history of the US Supreme Court. Frankfurtert remained stubborn, publishing a 24-page dissent. His position on these two flag cases completely alienated him from his old friends in the American Public Freedom League.
The majority opinion drafted and announced by the new Justice Jackson became a brilliant chapter in the constitutional history of the United States. Unlike the Gobitis case, which revolves around the principle of religious freedom, the court has taken a different angle and discussed it from the principle of freedom of expression. By doing so, we both reaffirm the most important public right to freedom of expression and avoid the conundrum of sincerity among Jehovah's Witnesses.
Jackson said paying homage to the flag "is a form of utterance." Symbolic expression is a primitive but effective way of transmitting ideas. The use of the national emblem and flag to symbolize a certain system, idea, institution or individual is a shortcut to spiritual communication." From this point of view, it is really difficult for the court to recognize a mandatory form of expression. "If we maintain coercive homage to the flag, we must state that the Bill of Rights - which guarantees the individual's right to say what he wants to say - allows public power to compel individuals to say what he does not want to say", which is clearly contrary to the principle of freedom of speech.
At the same time, Jackson cleverly proposed a new point of view that the 1st Amendment, which had always been considered to be only binding on the federal government, could also constrain state and local governments. In the Gobitis case, the Supreme Court stated that it had no right to "become the National Board of Education," i.e., that is, the issue of flag salutations in public schools was only the exclusive jurisdiction of the cantonal boards of education and could not be interfered with by the courts; but now it has made it clear that "now the Amendment to Article 14 applies to the states, protecting citizens against the state governments and all its institutions, and the Board of Education is no exception."
The importance of this judgment lies in the fact that it once again highlights the sanctity of public rights. Jackson emphasized: "The fundamental purpose of the Bill of Rights is to keep some basic rights away from the unpredictable changes caused by political disputes, to place them out of reach of the majority of people and officials, and to establish them as legal principles for the courts to deal with." Individual rights to life, liberty, property, freedom of speech, belief, and association, as well as other fundamental rights, are not subject to voting and do not depend on the outcome of any election. "Of course the government can promote national unity by persuasion and setting an example, but the problem now is that the government wants to achieve this goal by coercion, which will have very dangerous consequences: "Those who coercively eliminate dissent will soon find that they are actually exterminating dissenters." The imposition of public opinion will always lead only to the silence that exists in the cemetery. ”
Finally, Jackson poetically pointed out: "If there is an unchanging star under the stars of our Constitution, it is that no official, regardless of his or her position, has the right to decide what is right, whether in politics, nationalism, religion, or other matters of public opinion, or to force citizens to express their faith by words or deeds." If there are circumstances that allow for this exception, then we will not allow it to happen now! ”
Jackson's sonorous and forceful exposition became the Supreme Court's classic expression of individual rights. Since then, this voice of his has been echoed in more than 100 cases related to individual rights in the Supreme Court, forming the legal cornerstone of the pluralism and even extremism of speech in the United States today. What is commendable is that this judgment was made during wartime, when the government usually suppressed dissent for the sake of national security needs, which shows that the Supreme Court was able to maintain its independence and have the courage to correct its own mistakes during the period when patriotism in the United States was on the rise.
Blake also used the opportunity to "atone for his sins," explaining in the by-side note (douglass joining) the reason for his change of position: because the mandatory practice of paying homage to the flag "cannot be fully compatible with the right to religious freedom guaranteed by amendments 1 and 4." He further elaborated on his understanding of the terms of religious freedom: "The words that are coerced do not prove fidelity other than self-deception. The love of the country must come from a willing hearts and a free mind. ”
Since then, it has been almost impossible for all levels of government in the United States to pass any laws and regulations that may undermine the 1st Amendment to the Constitution. This is evidenced by the 1980 flag burning case and the results of the Law on the Protection of the National Flag.
V. Pledge of Allegiance Will Again Arouse Criticism and wait and see from all over the United States
After the second case of flag salutation and the burning of the national flag in the 1980s, the legal dispute over the national flag under the 1st Amendment to the Constitution can be said to be settled and become an iron case.
But the United States is such a strange society, burning the national flag is legal, but the oath of allegiance to the national flag is suspected of violating the law. Just as this article was being completed, one such case emerged in California at the end of June 2002. This time it was another case related to the national flag, and it was also a disaster caused by the "Oath of Allegiance."
Although jehovah's Witnesses can no longer express their heartfelt feelings to the flag, ordinary children still have to recite oaths at school. As early as 1942, the US Congress passed legislation to fix the content of the oath in the form of law. In 1954, in order to fight a cold war against "atheistic" communism, on the advice of President Eisenhower, Congress passed a new law that added the word "God" to the country in the original oath and became "one nation under god" (God under god). Years have passed, and generations of American schoolchildren have grown up reciting this oath. Although the Supreme Court ruled in 1962 engel v. vitale that prayers for school organizations were illegal, no one disputed the oath of allegiance to school organizations. In fact, if the death is picked up, it is also problematic for schoolchildren to recite oaths with the word "God" on them.
The forest is big, and there are birds. An atheist in California challenged the legitimacy of reciting the Oath of Allegiance. The public name was Michael Newdow, a strange man who had earned Americans' favorite degrees in medicine and law, had dual identities as an emergency doctor and a lawyer, and then founded the first amendment church of true science( short for facts, meaning fact. The Chinese-language media in the United States call it the "Church of Cosmic Life," but I don't know what basis it has. According to its abbreviation, and its belief in science and the 1st Amendment to the U.S. Constitution, it seems that it can be called the "truth of the facts" church. In the United States, starting a church is as convenient as starting a company, and anyone can register a church as long as it is not illegal), and the church believes in the power of reason and science, and the fundamental freedoms of the individual. Newdo was very dissatisfied with the fact that his second-grade daughter had to recite the Oath of Allegiance every day, so based on his knowledge of the constitutional history of the United States, he decided to challenge this oath that millions of people had been accustomed to for many years, but with obvious religious overtones, in the form of a law. His long challenge began in 1997, when he had not yet taken his bar license, and he only passed the exam in February 2002, 14 years after he graduated from law school.
Qualified as a lawyer, Newdo simply defended himself. The case is called Newdow v.U.S. congress, but the actual list of defendants is a long list, from Congress to President Clinton, from the California government to the school district Board of Education. On March 14, 2001, the case was heard in san francisco's 9th Circuit Court of Appeals, with Newdo defending himself and representing the attorney corps of the federal government, local government, and school district, respectively.
According to the California education code, California schools are required to engage in some form of patriotism every day, according to which his daughter's school district requires students to recite the Oath of Allegiance every morning. Although the school and the teacher did not force her to participate in the recitation, in this atmosphere, his daughter was hurt by being "forced to see and hear" the teacher and classmates reciting "Under God." Therefore, under the 1st Amendment Secession Clause, he sued the 1954 law, the California Education Ordinance, and the Schools Rule for illegality, hoped that the court would do justice, and demanded that the president and Congress take action to remove the word "God" from the oath so that his daughter could grow up freely in an atheistic and relaxed environment. Government lawyers emphasized the triviality of the religious meaning of "under God," and that schools did not force every child to recite oaths.
Because the influence of religion in the United States is so great, and because it is quite common to mix with public life and government behavior, government lawyers are also telling the truth, and no one thinks that the word "God" must have a strong religious meaning. For example, the phrase "We trust in God" is not only inscribed on coins issued by the US government, but also prominently inscribed on the walls of the Capitol. The opening speech of the federal congress meeting is the prayer of the pastor, the Supreme Court must first recite "God save the United States and this venerable court" before the hearing can be held, and there are military chaplains in the federal army, even if you go to the court to testify, you must swear to the president, hand in the Bible, swear that everything you say is true, otherwise you will undoubtedly lose.
But some of the judges of the 9th Circuit Court of Appeals have always gone their own way, often in surprising ways, and are the most "liberal" of all the court of appeals. The ruling in this case once again embodies the court's judge's consistent style of "not surprisingly dying", which really surprised Americans who were immersed in the patriotic passion triggered by the "9 mouth 1 incident".
On June 26, the court pronounced a judgment in favor of the plaintiffs. The judgment, drafted by Alfred Goodwin, said: "At present this oath is a government endorsement of religion, which is not allowed. Because it gives the non-believers a message: 'You are outsiders, not full members of this political community.' The message to the believers is: 'You are insiders, favorite members of this political community.' ’”
Citing the 1962 School Prayer case as an example of support, Goodwin emphasized that the lower court's decision to defeat the case on the grounds that "the reference to God in the oath is only a form and does not mean that a particular religious belief is identified" is inconsistent with the Supreme Court's decision: "Reciting that our country is a country 'blessed by God' is by no means just an acknowledgement of the belief of many Americans in God." Nor is it a simple description of the indelible historical role of religion in the creation of the (American) republic. It should be said that the phrase 'God bless the nation' is a norm within the framework of the oath. "The recitation of the oath is not a description of the United States, it is actually an oath of allegiance to the values represented by the flag: unity, unity, freedom, justice, and, after 1954, monotheism." "Although students cannot be forced to participate in the recitation of the oath, when the school district asks public school teachers to recite and receive the current oath, it is undoubtedly sending a message that a state recognizes this religious belief." He again quotes Jackson's famous quote about "there is an unchanging star in the sky of the Constitution."
Goodwin also noted that while government lawyers call the religious content of the oath insignificant, for atheists and non-Christians it is "an attempt to force the orthodoxy of monotheism and is therefore not allowed."
Judge Goodwin pointedly pointed out that from the background of its emergence and the history of legislation, 'under god' has obvious coercive effects," because the US government also admitted that the phrase "God bless" was added to oppose the needs of communism. When President Dwight Eisenhower signed the bill, he said in particular: "From today onwards, in the classrooms of every town and every village school, millions of our schoolchildren will recite every day the cherishing of our people and people for the almighty." Thus, Goodwin concluded that the 1954 law, which included the content "God bless," and the California school district rule that had teachers lead students to recite the oath "violates the religious separation clause."
Judge Ferdinand Fernandez, while agreeing with Judge Goodwin's basic views (parts 1-3 of the judgment), disagreed with the final conclusion (part 4). In dissent, he said: "In a word, I cannot accept the cancellation of 'God bless' from the oath of allegiance, because it is obvious that its tendency to establish religion in the United States or to intervene in religious freedom is insignificant." ”
This ruling of the 9th Circuit Court of Appeals immediately caused an uproar. The news reached the Senate, where members suspended the discussion and within minutes passed the condemnation verdict by 99 votes to none and support the Oath of Allegiance. Hundreds of members of the House of Representatives, mostly Republicans, gathered on Capitol Hill that night to recite their oaths in protest. Daschler, the leader of the Senate majority, said: "The court must overturn the verdict, otherwise we will do it." A House spokesman said: "The court is clearly wrong, and we are of course a country under God's protection." The Oath of Allegiance is a patriotic tribute that brings people of all faiths together to share the American spirit. Some people think that the expression "God" also appears in the Declaration of Independence, and one senator exaggerated: "I doubt whether the judges even regard the Declaration of Independence as unconstitutional." (In fact, Jefferson, the drafter of the Declaration of Independence, advocated the principle of "separation of church and state," using general references to "creator" and "the laws of nature and of nature's god" in the declaration, without directly referring to "god." Another senator said, "The Fathers of the Nation will be dizzy in their graves." This is the worst act of political correctness."
But atheist groups support the ruling. Zametzky, a speaker at the American Center for Atheists, said: "Freedom of speech should not include turning government into a tool for advocacy to the controlled, especially students. ”
Although Newdo received threatening phone calls for this, he vowed to fight to the end and planned to file a lawsuit against "We Trust God" on the dollar. He told ABC: "This is the US government imposing its religious views on all Us citizens, but I happen to be one of the citizens who do not agree with the majority view." ”
Just when the atheists were happy and the theists were sad, the next day a U.S. Supreme Court verdict produced the opposite result. The day after the Newdau decision, the Supreme Court ruled 5 to 4 that Cleveland, Ohio's practice of sending their children to private schools or even private church schools with "vouchers" refunded by the government does not violate the constitutional principle of separation of church and state. Obviously, the Supreme Court would approve even this disguised use of public funds to support the church, in clear violation of the separation of churches, and can it be expected to result in the judgment of the 9th Circuit Court of Appeals? (Public schools in the United States, especially in large cities, generally have serious problems such as insufficient educational facilities, lack of teachers, and declining quality of education, and how to improve the situation of these schools has become a political and social issue of concern to the whole of American society.) One solution is to introduce a competition mechanism that allows private schools to compete with public schools. Because a considerable part of the tax paid by taxpayers is spent in public schools, and those parents who send their children to private schools feel at a loss, because they pay taxes and their children go to private schools where they need to pay fees. Therefore, they demanded that the government refund the cost of each student in the form of a "voucher" to offset the tuition fees of some private schools. It should be noted that the schools here are not the elite schools for the children of the rich and professionals as Chinese understands, but most of them are civilian schools for children with low family incomes, basically founded by the Church, especially the Catholic Church. In this way, it is equivalent to the government funding church schools in disguise. Frankly, the name of Newdo has touched a sensitive nerve in American society, which is how to define the clear boundaries of the separation of church and state. Although Jefferson, the father of American democracy, claimed that the US Constitution "erected a wall of separation between church and state," this wall is not airtight. In the United States, the earliest and most active colonization of the North American continent was a group of Puritans from England, and the religious tradition thus formed was so long and too strong that it was almost impossible and unrealistic to practice a complete and complete separation of church and state. Therefore, the average American has a broad understanding of the "God bless" in the "Flag Oath" and the "we trust in God" on the coin, interpreting it as a "god" that can cover all religious beliefs, as Professor Wang Jisi said in the preface to this book. However, this understanding still cannot cover atheists like Newdo.
However, unlike the direct gratitude to God in school prayer, the Oath of Allegiance is primarily a pledge to the American nation — although there is the phrase "God bless," which is why many liberals can accept a verdict banning school prayer but firmly oppose the oath case. Therefore, although the 9th Court of Appeal of the Federation issued a judgment in favor of Newdo, due to the strong opposition of public opinion, it was not immediately implemented, and it was held that it still needed to be re-examined by the legal officers. At the same time, Newdo's ex-wife also came forward to accuse New road, claiming that New Road was not a responsible father, did not have custody of his daughter, and that he was lying, and that their daughter was not harmed by reciting the oath.
This case is likely to become a short-lived little farce, but it can allow outsiders to peek into the problems and helplessness of the US rule of law culture.