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55 U. Cin. L. Rev. 997 (1986-1987)
A Catalyst for the Evolution of Constitutional Law: Jehovah's Witnesses in the Supreme Court

handle is hein.journals/ucinlr55 and id is 1007 raw text is: A CATALYST FOR THE EVOLUTION OF CONSTITUTIONAL
William Shepard McAninch*
If there is any fixed star in our constitutional constellation, it is
that no official, high or petty, can prescribe what shall be or-
thodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
therein. If there are any circumstances which permit an excep-
tion, they do not now occur to us.'
It should not be surprising that this phrase, described as one of
the Court's most ringing defenses of liberty,2 appears in a case
involving members of the Jehovah's Witnesses. West Virginia State
Board of Education v. Barnette, decided upon free speech grounds, up-
held the right of a child to refuse to salute the flag in public school,3
and is one of a number of vitally important first amendment Jeho-
vah's Witnesses cases decided from the late 1930s through the mid-
1940s. The extent of the Witnesses' impact on constitutional law is
suggested by the fact that in Justice Frankfurter's exegesis on the
first amendment's concern with restricting speech in public places in
yet another Jehovah's Witnesses case,4 sixteen of the twenty-two
Supreme Court decisions he discussed involved members of this
same sect.5 Contemporary response to the Witnesses' success in
* Professor of Law, University of South Carolina. I would like to thank my
colleague, Don Wedlock, for helpful comments, the University of South Carolina for a
semester's sabbatical leave, and the Institute of Advanced Legal Studies of the
University of London for a hospitable environment in which to work.
1. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
2. L. TRIBE, AMERICAN CONSTITUTIONAL LAw 871 (1978) [hereinafter TRIBE].
3. The refusal was prompted by the Witnesses' belief that the flag is a graven image
proscribed by Exodus 20:4 and 20:5. The case is discussed infra at text accompanying
notes 172-86.
4. Niemotko v. Maryland, 340 U.S. 268 (1951).
5. Id. at 275-83 (Frankfurter, J., concurring). The Jehovah's Witnesses cases
discussed include Saia v. New York, 334 U.S. 558 (1948); Tucker v. Texas, 326 U.S. 517
(1946); Marsh v. Alabama, 326 U.S. 501 (1946); Follett v. Town of McCormick, 321 U.S.
573 (1944); Prince v. Massachusetts, 321 U.S. 158 (1944); Martin v. City of Struthers,
319 U.S. 141 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Jones v. City of
Opelika, 319 U.S. 103 (1943), vacating, Jones v. City of Opelika, 316 U.S. 584 (1942);
Largent v. Texas, 318 U.S. 418 (1943); Jamison v. Texas, 318 U.S. 413 (1943);
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Cantwell v. Connecticut, 310 U.S.
296 (1940); Cox v. New Hampshire, 312 U.S. 569 (1941); Schneider v. State, 308 U.S.
147 (1939); Lovell v. City of Griffin, 303 U.S. 444 (1928).
The non-Jehovah's Witnesses cases include Terminiello v. City of Chicago, 337 U.S. 1
(1949); Kovacs v. Cooper, 336 U.S. 77 (1949); Thomas v. Collins, 323 U.S. 516 (1945);

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