TRANSCRIPT 🔗
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[SPEAKER_04]: Hey everyone, this is Leon from Prologue Projects.
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[SPEAKER_04]: On this week's episode of Five to Four, Peter, Brianna and Michael are talking about Minersville V. Gabbitis.
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[SPEAKER_04]: In 1940 case, about two children who were expelled from their public school for refusing to salute the flag and recite the pledge of allegiance.
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[SPEAKER_04]: As Jehovah's Witnesses, the students refused on the grounds that the pledge was a form of idolatry who was therefore against their religion.
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[SPEAKER_04]: The Supreme Court sided with the school.
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[SPEAKER_04]: However, just three years later, in different cases, the Supreme Court reversed their decision.
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[SPEAKER_04]: A rare instance of the court quickly acknowledging and correcting the mistake.
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[SPEAKER_04]: This is five to four, a podcast about how much the Supreme Court sucks.
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[SPEAKER_02]: Welcome to five to four where we dissect and analyze the Supreme Court cases that have tried to kill our civil liberties like the Philadelphia Eagles Medical staff trying to kill Jalen Hertz.
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[SPEAKER_02]: I'm Peter.
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[SPEAKER_00]: Wow.
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[SPEAKER_02]: I'm here with Rihanna.
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[SPEAKER_00]: Hey everybody.
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[SPEAKER_01]: And Michael.
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[SPEAKER_01]: It's pretty shocking.
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[SPEAKER_01]: I mean, you know, I'm not so tick-tock-brained to think that they actually were affirmatively trying to kill me.
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[SPEAKER_02]: Let's put a pin in that.
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[SPEAKER_02]: We'll talk about our producers theories in a second.
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[SPEAKER_02]: But the, I guess the story is that Jalen hurts Philadelphia Eagles quarterback out for the season with blood clotting in his lungs and it appears that the Eagles medical staff were like aware of this and let him play, which is insanely dangerous even by professional football standards.
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[SPEAKER_01]: Yeah, just been a lot of conflicting reporting about what was known when and how serious it was.
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[SPEAKER_01]: Was it just a superficial blood clot when they cleared him to play or had it spread to his lungs?
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[SPEAKER_01]: Was it London doctors and not team doctors?
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[SPEAKER_01]: Was he asked to stay up or did he sleep?
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[SPEAKER_01]: Like, it's just been a lot of conflicting stuff and I'm not sure what's true other than the fact that
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[SPEAKER_01]: If they knew he had some blood clots, he played that he flew home on a transatlantic flight and then had a bunch of blood clots including in his lungs and his season is over and possibly Christine how severe blood clots affected other athletes possibly his career.
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[SPEAKER_02]: Yeah.
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[SPEAKER_00]: Yeah, Ali has a theory, though.
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[SPEAKER_02]: Our producer made us aware that she's been watching TikTok videos saying that the Eagle's medical staff is trying to kill him.
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[SPEAKER_02]: Right, which has me relatively concerned about what she's consuming because she is part of the team in at least in theory.
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[SPEAKER_02]: And it's like, is it dragging us down that one of our team members is consuming
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[SPEAKER_00]: Ally, I just want you to touch base and maybe touch grass and then also maybe like, you know, some more normal things.
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[SPEAKER_02]: Yeah, maybe just like maybe like what to wear this fall, you know, what are people doing with their nails or like what's going on at the Supreme Court.
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[SPEAKER_02]: Yeah, maybe some Supreme Court stuff, you know, yeah, she's also typed in the chat that she's doing this on the five to four account.
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[SPEAKER_01]: Yes, and that it was the large Hadron Collider.
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[SPEAKER_02]: he said.
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[SPEAKER_02]: I'm setting stuff again.
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[SPEAKER_02]: I don't have the authority to fire you, Ali.
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[SPEAKER_00]: But no, it's on our mind.
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[SPEAKER_02]: No, that it's on our mind.
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[SPEAKER_02]: It'll work up to me.
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[SPEAKER_02]: It would be a discussion.
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[SPEAKER_02]: We love alleys, so we love our insane producer folks.
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[SPEAKER_02]: Today's case, Miner'sville School District Begabitis is a case from 1940 about students refusing to pledge allegiance to the flag.
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[SPEAKER_02]: In the 1930s, a couple of schoolchildren refused to pledge allegiance to the flag because they are Jehovah's Witnesses.
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[SPEAKER_02]: They believe that such a thing is tantamount to idolatry, which as we discussed when prepping this case, obviously it is.
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[SPEAKER_02]: Obviously, it is.
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[SPEAKER_02]: Obviously, idolatry.
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[SPEAKER_02]: Yeah.
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[SPEAKER_00]: That's accurate.
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[SPEAKER_00]: Yeah.
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[SPEAKER_02]: Unfortunately, it was mandatory to pledge allegiance to the flag in the school district, so these kids got into some trouble.
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[SPEAKER_02]: They get expelled.
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[SPEAKER_02]: The penalty is expulsion.
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[SPEAKER_02]: Their father, Sue's, saying this is a violation of their first amendment rights, their religious liberty, but the court in an eight
Load full transcript
to one decision to
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[SPEAKER_00]: Yeah.
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[SPEAKER_00]: And eventually, you know, if you're listening to this and you say, wait, no, I do know first amendment stuff and haven't I heard that it is okay to refuse to stand for the pledge of allegiance.
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[SPEAKER_00]: You are right.
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[SPEAKER_00]: What's interesting about this case, guys, is that it gets overturned.
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[SPEAKER_00]: And not just that it gets overturned, but it gets overturned really quickly.
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[SPEAKER_00]: So I think what's like interesting kind of striking about this case is bad decision, but really sort of like stark ramifications, almost immediate in the public, and Supreme Court like reversing course very soon thereafter.
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[SPEAKER_00]: So let's talk about though the background for this case goodbye to us.
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[SPEAKER_00]: Jehovah's Witnesses, sure listeners know Jehovah's Witnesses are familiar, right?
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[SPEAKER_00]: This is a religious sect who's adherence, sort of famously or infamously depending on how you look at it.
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[SPEAKER_00]: Believe that an important part of practicing their faith is through prophyletizing, pamphleting, door-knock game.
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[SPEAKER_00]: Oh, that kind of good stuff.
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[SPEAKER_02]: Have you guys been hit by a witness door to door?
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[SPEAKER_00]: Definitely.
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[SPEAKER_00]: When I was a kid in Dallas suburbs, definitely.
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[SPEAKER_02]: Yeah, yeah.
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[SPEAKER_02]: I remember a couple of nice ladies coming by, but I was like 15 in the height of my teenage atheist phase.
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[SPEAKER_02]: Sure.
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[SPEAKER_02]: And I remember them being like, do you believe in God?
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[SPEAKER_02]: And I was like, not really.
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[SPEAKER_02]: And they were like, look around.
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[SPEAKER_02]: You think this all could have happened by accident, isn't it just so complex and beautiful that it couldn't have happened by accident?
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[SPEAKER_02]: And I was like, I think it's so complex and beautiful, it had to have happened on accident.
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[SPEAKER_02]: And they were like, you could just see they were like, oh shit, this kid's a fucking, this kid's weird.
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[SPEAKER_02]: Right, this kid is annoying.
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[SPEAKER_01]: It beaters like the guy in heretic in this moment.
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[SPEAKER_01]: Yeah, two religious girls come to his door and he's like, can I invite you in for a chat?
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[SPEAKER_02]: I'm actually here to ruin your afternoon.
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[SPEAKER_02]: I've been debating this on the internet for several weeks.
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[SPEAKER_02]: And now I'm here to bring it to you.
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[SPEAKER_00]: Yeah, and y'all don't have experience in chat rooms, do you?
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[SPEAKER_02]: I sort of remember their child calling for them from the car.
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[SPEAKER_02]: Like, mom, stop talking to this kid.
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[SPEAKER_03]: If there's no God, then we're just horny microscopic and splitting on a rock through space with no divine purpose and the hope to achieve eternal life.
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[SPEAKER_03]: I'm terrifying too.
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[SPEAKER_00]: When they came to my house, we were always kind of in a standstill.
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[SPEAKER_00]: They would say, well, let me just give you the pamphlet or whatever.
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[SPEAKER_00]: And I would say, like, as a Muslim, I can't throw away the religious literature of any other faith.
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[SPEAKER_00]: So I'm not going to accept that.
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[SPEAKER_00]: We were just kind of stare at each other for a little while.
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[SPEAKER_00]: It's nothing more to really say, or, you know, transact on here.
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[SPEAKER_00]: So yeah.
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[SPEAKER_00]: Okay, so everybody knows the witnesses, right?
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[SPEAKER_00]: Other tenants of their faith include a strict ban on any form of idolatry, which they view as like celebrating non-religious holidays, for example, or importantly, for this case pledging allegiance to a nation, saluting a flag.
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[SPEAKER_02]: And not just celebrating non-religious holidays, but they believe that, for example, Christmas is tantamount to idol worship.
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[SPEAKER_02]: They don't do Christmas, right?
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[SPEAKER_00]: Yeah.
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[SPEAKER_02]: Presumably no Easter Bunny as well.
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[SPEAKER_01]: I mean, they are right, Christmas and Easter were pagan holidays for us, right?
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[SPEAKER_01]: So...
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[SPEAKER_00]: Totally, totally.
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[SPEAKER_02]: Also something I would have brought up at 15.
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[SPEAKER_01]: I'm getting converted.
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[SPEAKER_01]: Did you hope as they are the only ones who seem to know what's up?
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[SPEAKER_00]: Right, you're convincing me, actually.
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[SPEAKER_00]: Yeah, yeah, yeah.
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[SPEAKER_00]: Okay, so that's who we're talking about in this case, that's who, you know, these children who are Jehovah's Witnesses get expelled from school and this case goes up to the Supreme Court.
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[SPEAKER_00]: But I think it's important to talk about some other like historical context that's happening
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[SPEAKER_00]: In
1940, the United States has not officially entered World War II, but the war has been going on for a long time.
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[SPEAKER_00]: And Americans are following the news.
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[SPEAKER_00]: People are wary.
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[SPEAKER_00]: They are afraid at this time of Nazi advancement in Europe.
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[SPEAKER_00]: They're wondering about whether the United States is going to enter the war in one.
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[SPEAKER_00]: And the sort of like public discourse or the public sentiment at the time, they're sort of already taking up a sense that the United States is at war even before its official.
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[SPEAKER_00]: So of course, what do we know about Americans when they're at war?
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[SPEAKER_00]: They're going to be on alert for traders for internal detractors, for spies.
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[SPEAKER_00]: They're going to be doing patriotism, litmus tests.
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[SPEAKER_00]: They're calling fries, freedom, fries.
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[SPEAKER_00]: So when you layer this kind of sentiment on top of things here, you see how at the time to hope as witnesses had been already facing mounting religious persecution and discrimination because Americans are looking for people who are different and look at these guys they're not saluting the flag.
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[SPEAKER_00]: They say celebrating July 4th is sacrilege.
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[SPEAKER_00]: They keep handing pamphlets to me and I don't like it and it's un-American.
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[SPEAKER_00]: So, at this time, with the war kind of context, towns across America are actually passing ordinances trying to prohibit Jova's witnesses from distributing their pamphlets, their religious materials.
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[SPEAKER_00]: They're attempting to regulate the witnesses, religious practices, and public, they're requiring all of the sudden that Jova's witnesses pay licensing fees for being out in public and proselytizing.
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[SPEAKER_00]: So, there's this sort of discrimination that's imbued with this idea that
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[SPEAKER_00]: So we'll talk in a minute about the additional layer of legal context here, which is also at this time.
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[SPEAKER_00]: There's a very nascent budding movement in terms of an organized legal movement around starting to bring litigation in federal court on issues of individual liberties and individual rights.
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[SPEAKER_00]: So this is starting to happen also at this time.
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[SPEAKER_00]: But just getting into details of the case, Lillian Gabbitis is 12 years old, her brother, William Gabbitis was 10 at this time in 1940 when they were expelled from their public school in Minersville, Pennsylvania, because they conscientiously refused to salute the flag during the Pledge of Allegiance.
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[SPEAKER_00]: And at the time in this school district,
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[SPEAKER_00]: The teachers, students, they were required by the school, the school district rules to participate in saluting the flag and pledging allegiance every single morning.
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[SPEAKER_00]: So as a result of these children's expulsion from school, your Buddhist family had to pay to put the children.
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[SPEAKER_00]: in private school and so their father sues to recoup the cost of private school but also importantly to ask that the public school district be enjoying from requiring participation in the pledge of allegiance as a condition that his kids go to public school.
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[SPEAKER_00]: So that's how we go up to the Supreme Court, keeping in mind this context of like wartime, sentiment, fervor against religious minorities, and Supreme Court justices trying to be sensitive to all of it at the same time.
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[SPEAKER_02]: So the majority here is written by Felix Frankfurter and starts off talking about the value of symbols.
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[SPEAKER_02]: He says, the ultimate foundation of a free society is the binding tie of cohesive sentiment, such as sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life,
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[SPEAKER_02]: which constitutes a civilization.
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[SPEAKER_02]: We live by symbols.
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[SPEAKER_02]: The flag is the symbol of our national unity, transcending all internal differences, however large within the framework of the Constitution.
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[SPEAKER_01]: someone pulled up with his source.
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[SPEAKER_01]: Yeah, I think a moment to appreciate that Felix Frank's Ferders actually a pretty good writer because he makes it sound reasonable that he's like the foundation of civilization is saluting the flag.
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[SPEAKER_02]: Right, right, right.
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[SPEAKER_00]: Like he likes it and you're like wait a minute.
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[SPEAKER_00]: I mean, I read that sentence again.
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[SPEAKER_01]: Yeah, it doesn't sound like the dumbest shit you've ever heard.
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[SPEAKER_01]: It's like I'm like not persuaded, but I'm like, that's not stupid and I think about him like, no, he literally said the foundation of civilization is saluting the flag.
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[SPEAKER_02]: Right.
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[SPEAKER_00]: Yeah, yeah.
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[SPEAKER_02]: He says we live by symbols and you're like, yeah, the flag is a symbol of our liberty, which is why it must be mandatory in the real world to salute it.
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[SPEAKER_00]: Yeah, exactly.
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[SPEAKER_00]: It's exactly.
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[SPEAKER_00]: It's like symbols have meaning.
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[SPEAKER_02]: Yeah.
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[SPEAKER_00]: So we all have to agree on it.
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[SPEAKER_02]: We all must sacrifice some liberty in order to preserve the sanctity of the symbol of our liberty.
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[SPEAKER_01]: And it's literally in the opinion.
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[SPEAKER_01]: It is.
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[SPEAKER_01]: That's not even what you say.
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[SPEAKER_00]: Even exaggeration.
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[SPEAKER_00]: And I'm in a right of poem about it.
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[SPEAKER_01]: He's like, your liberty won't be protected if we don't salute the flag and you have to do it.
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[SPEAKER_01]: Like for others.
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[SPEAKER_01]: Right.
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[SPEAKER_02]: Now, the rest of the opinion, the really the heart of the opinion is the idea.
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[SPEAKER_02]: that this is the prerogative of the school district.
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[SPEAKER_02]: This is not the realm of the courts.
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[SPEAKER_02]: This is something that the school district should have the ability and the freedom to decide whether or not they want to mandate this.
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[SPEAKER_02]: He's sort of like if the school district wants to foster national unity by mandating
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[SPEAKER_02]: the pledge, that's their business.
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[SPEAKER_02]: That's not court business, right?
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[SPEAKER_02]: He says to stigmatize legislative judgment and providing for this universal gesture of respect for the symbol of our national life in the setting of the common school as a lawless inroad on that freedom of conscious which the Constitution protects would amount to no less than the pronouncement of pedagogical and psychological dogma.
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[SPEAKER_02]: in a field where courts possess no market and certainly no controlling competence.
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[SPEAKER_02]: He says legislative judgment, but he's really talking about the school district here.
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[SPEAKER_02]: He speaks about them as one thing.
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[SPEAKER_02]: When you say legislative judgment, it makes it sound like you're maybe talking about Congress.
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[SPEAKER_02]: But you are talking about like a school board.
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[SPEAKER_02]: Right, like the the premise here a single school board and this is the real heart of the opinion they say the courtroom is not the arena for debating matters of educational policy so he's like we are not going to enforce a certain dogma that this is up to the schools very sort of familiar reasoning this is something you see now a lot when the courts just don't want to deal with something they're like oh my god, this isn't court
business.
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[SPEAKER_00]: Yeah, this is so important, but I'm stupid.
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[SPEAKER_02]: Look, if a school district decides that they want to mandate this in order to like enhance the vibes of the nation, that's up to them.
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[SPEAKER_02]: There is something sort of running through this, he says judicial review itself, a limitation on popular government, is a fundamental part of our constitutional scheme.
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[SPEAKER_02]: But to the legislature, no less than to courts is committed, the guardianship of deeply cherished liberties.
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[SPEAKER_02]: looking out for liberties and they can basically balance liberty and whatever other interests they're trying to advance without our intervention.
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[SPEAKER_00]: Right.
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[SPEAKER_02]: Which again, if you're talking about like Congress might make some sense where it's sort of like right.
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[SPEAKER_02]: Congress made a determination that this is constitutional, we are the court.
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[SPEAKER_02]: We're going to defer to that.
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[SPEAKER_02]: But you're talking about a school board.
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[SPEAKER_02]: You're saying that you are, you are in trusting every individual's school board across the country to properly balance liberty interests against whatever else.
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[SPEAKER_02]: The dumbest people in the world.
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[SPEAKER_02]: to interpret the constitution and then, and for you to say, and we don't have a role in doing that if you would just like put on the record the median school board member from 1935 and just like we're like give us your thoughts and then we like read them to you it would be like hearing a dog bark like you would you be like whoa like think it would be
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[SPEAKER_00]: and it goes videos from like, it like speeds up how somebody speaking medieval English right in whatever year and then what that sounds like in like 1700 and then like 1900 and then today and you're like whoa it's definitely around 1960 that I start understanding there yeah there's thoughts would be closer to that of a medieval peasant than a learned person from right now
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[SPEAKER_02]: And the court is just like, look, who are we to say what the Constitution means, right?
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[SPEAKER_02]: This school board is already decided.
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[SPEAKER_02]: Right.
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[SPEAKER_02]: The super-intended in minorsville, Pennsylvania, things that this is constitutional.
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[SPEAKER_01]: And what, me, I'm just a guy on the Supreme Court.
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[SPEAKER_01]: I'm just a poet.
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[SPEAKER_01]: It also makes the whole thing about national unity and cohesion seem so stupid, because it's one school district.
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--> 16:51.493
[SPEAKER_01]: It's one school district.
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[SPEAKER_01]: It's the entire fucking country.
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[SPEAKER_00]: Why front load with the loftiest ideas?
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[SPEAKER_00]: Yeah.
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[SPEAKER_00]: You know, so meta and be like, this guy got it.
17:00.637 --> 17:28.257
[SPEAKER_02]: Like the neighboring school district might not even do this, right, right, you know, like this is how we reproduce society and it's like one school district at a time saying like we live by symbols is so it's so interesting like you mean psychology or something he's like how can you separate the freedom that the flag represents from the flag itself what are you talking about do this just it's like obscene.
17:47.826 --> 18:05.314
[SPEAKER_02]: Something that's important to understand is that the idea that the court is like the backstop for our individual constitutional liberty just wasn't built into our understanding of the constitutional system at this point in time to the degree that it is now.
18:05.794 --> 18:06.655
[SPEAKER_02]: This is really
18:07.475 --> 18:13.376
[SPEAKER_02]: the early stages of when you start to see like litigation about individual rights.
18:13.716 --> 18:16.417
[SPEAKER_02]: Before this, it had primarily been business.
18:16.697 --> 18:27.579
[SPEAKER_02]: There's been a lot of scholarship about how like a lot of individual rights as we understand them in the mid-century, actually originated from like business rights, right?
18:27.819 --> 18:34.060
[SPEAKER_02]: The constitutional arguments were being brought by businesses first and then individuals started building off of that.
18:34.700 --> 18:42.250
[SPEAKER_02]: it's very hard to explain this with our sort of modern lens, but the court is kind of looking at this and they're like, I don't get it.
18:42.350 --> 18:42.571
[SPEAKER_02]: Yeah.
18:42.731 --> 18:44.834
[SPEAKER_02]: Some guys got a problem with saying the pledge.
18:45.114 --> 18:45.314
[SPEAKER_02]: Why?
18:45.935 --> 18:46.916
[SPEAKER_02]: Why is that my business?
18:47.437 --> 18:47.657
[SPEAKER_02]: Right.
18:48.378 --> 18:48.619
[SPEAKER_01]: Right.
18:48.939 --> 18:52.344
[SPEAKER_01]: You can see that sort of formalistically too when you compare
18:52.744 --> 19:13.532
[SPEAKER_01]: you know Alice is in the majority opinion to that of the descent the descent was by our woke king harlan stone writing solo also the author of a big important case from a few years prior careling products which i will just give you guys a quick primer on because he does reference it and it is to the point peter was just making
19:14.232 --> 19:20.775
[SPEAKER_01]: That was a case about a milk producer who made something called Fild's Milk.
19:20.815 --> 19:21.575
[SPEAKER_01]: Don't love that name.
19:22.216 --> 19:23.376
[SPEAKER_02]: Or a case drinking it right.
19:23.897 --> 19:24.897
[SPEAKER_02]: I don't want to know what it means.
19:24.917 --> 19:35.142
[SPEAKER_01]: Well, I'm going to tell you anyway, it's when they skimmed like the milk fats off and then fortified what's left over with some other sort of fat.
19:35.182 --> 19:37.683
[SPEAKER_01]: Like in this case, I believe it's coconut oil.
19:38.443 --> 19:39.384
[SPEAKER_01]: And why?
19:42.145 --> 19:47.527
[SPEAKER_01]: And Congress had under its interstate commerce clause powers banged this.
19:48.067 --> 19:52.449
[SPEAKER_01]: Congress had the same exact reaction as Peter and was like, no, you can't do this.
19:53.169 --> 19:54.230
[SPEAKER_01]: You cannot do this.
19:54.610 --> 19:56.671
[SPEAKER_01]: This is legally, this is too disgusting.
19:56.771 --> 19:58.932
[SPEAKER_02]: What you're doing.
19:59.012 --> 20:00.752
[SPEAKER_02]: This is the front.
20:00.932 --> 20:05.994
[SPEAKER_02]: You have, you have, you have burned down the bridge between God and man.
20:09.461 --> 20:12.222
[SPEAKER_02]: By the way, we're going to get an email by someone who's like, I make the type of milk.
20:13.962 --> 20:14.923
[SPEAKER_02]: Seriously.
20:15.883 --> 20:17.924
[SPEAKER_01]: He sees the laws upheld.
20:17.944 --> 20:23.305
[SPEAKER_01]: The opinion is written by Harlan Stone, who says it's like a generally applicable economic law.
20:23.425 --> 20:36.129
[SPEAKER_01]: You basically applies what you'd call now rational basis review, which is also what the majority applies here, which is as a generic applicable law is there an interest here that makes sense for the government to be pursuing that a can legitimately pursue and does it.
20:36.409 --> 20:37.790
[SPEAKER_01]: Okay, then we're fine.
20:38.290 --> 20:46.626
[SPEAKER_01]: presumptively constitutional, but he drops a footnote, a very famous footnote, in this case, that's like, of course,
20:47.612 --> 20:57.480
[SPEAKER_01]: If a law is targeted at like discreet and insulin minorities, people who have been historically discriminated against, judges should take a more searching form of review.
20:57.541 --> 21:11.272
[SPEAKER_01]: We should be a little suspicious about that, and we shouldn't be careful, and we should really think about whether the law is constitutional, and we shouldn't presume it is, essentially, which was essentially the birth of what's called strict scrutiny, you know, the backbone of
21:13.554 --> 21:20.637
[SPEAKER_01]: And so he's the author of the descent here just a few years later and he's citing back to himself and he's being like, look, this is exactly what I was talking about.
21:20.797 --> 21:20.997
[SPEAKER_04]: Yeah.
21:21.137 --> 21:24.618
[SPEAKER_01]: The majority wants to say this is a generally applicable law, but let's be real.
21:24.698 --> 21:27.679
[SPEAKER_01]: Like this is falling on discrete and insulin minorities.
21:28.160 --> 21:31.701
[SPEAKER_01]: It's infringing on their mind and their spirit and their religious liberties.
21:32.301 --> 21:50.994
[SPEAKER_01]: He says we've all seen this story before, he says history
teaches us that there have been but a few infringements of personal liberty by the state, which have not been justified as they are here in the name of righteousness in the public good, in a few which have not been directed as they are now at politically helpless minorities.
21:51.135 --> 21:51.615
[SPEAKER_01]: It's like, come on.
21:51.815 --> 21:57.759
[SPEAKER_01]: This is what you say every fucking time when you come down hard on a religious minority, a racial minority, whatever.
21:58.179 --> 21:59.940
[SPEAKER_01]: So we should be a little more careful.
22:00.301 --> 22:02.122
[SPEAKER_01]: We shouldn't just presume it's constitutional.
22:02.142 --> 22:06.525
[SPEAKER_01]: The government should have to say something more than national unity, bro.
22:07.103 --> 22:07.283
[SPEAKER_02]: Right.
22:07.303 --> 22:12.005
[SPEAKER_02]: He's like, this is how every law that's ever oppressed someone has been justified.
22:12.105 --> 22:12.305
[SPEAKER_02]: Right.
22:12.425 --> 22:14.786
[SPEAKER_02]: Oh, to the interests of national unity or whatever.
22:15.427 --> 22:17.508
[SPEAKER_01]: And yeah, it's a really good descent.
22:17.568 --> 22:20.209
[SPEAKER_01]: And it feels really modern in a lot of ways.
22:20.389 --> 22:20.589
[SPEAKER_01]: Yeah.
22:20.649 --> 22:22.490
[SPEAKER_01]: And it's thinking and it's approach.
22:22.830 --> 22:24.311
[SPEAKER_01]: No, no complaints from me.
22:24.651 --> 22:27.092
[SPEAKER_01]: Short, sweet to the point and correct.
22:27.252 --> 22:27.392
[SPEAKER_02]: Yeah.
22:27.412 --> 22:30.814
[SPEAKER_02]: We're still in the short opinion era.
22:31.054 --> 22:31.574
[SPEAKER_02]: God bless.
22:31.694 --> 22:32.214
[SPEAKER_02]: Exactly.
22:32.234 --> 22:33.955
[SPEAKER_02]: I'm grateful to do a throwback.
22:34.307 --> 22:49.949
[SPEAKER_01]: The combination of it being short and like this has to do with the reasoning is in the majority just reminded me though of like just some like drunk guy at 2 a.m. being like You don't want to salute the flag with everything that's going on right now in the world you don't want to salute the flag really.
22:50.229 --> 22:54.293
[SPEAKER_01]: Yeah, you know, I was just like, dude, like you had three beers too many go to sleep.
22:54.353 --> 22:56.555
[SPEAKER_01]: You know, that's what I want to say to the Felix Frankford.
22:56.575 --> 22:59.939
[SPEAKER_00]: Yeah, yeah, it's sober friend being like, yeah, yeah, we'll talk about it tomorrow.
23:00.019 --> 23:03.782
[SPEAKER_02]: And then you're other friend on meth who's like, we live through symbols, right?
23:04.103 --> 23:04.403
[SPEAKER_02]: You're like,
23:09.155 --> 23:09.656
[SPEAKER_00]: Exactly.
23:09.676 --> 23:11.858
[SPEAKER_00]: All right, so let's talk about Ben.
23:11.898 --> 23:21.449
[SPEAKER_00]: This is an eight to one decision like Michael just said, and there are almost immediate detrimental harmful dangerous effects of this decision.
23:21.889 --> 23:26.414
[SPEAKER_00]: Large swaths of the public, especially across small town America, but across the entire country.
23:27.155 --> 23:34.057
[SPEAKER_00]: interprets this decision as basically like legal affirmation that Jehovah's Witnesses are traitors to the United States.
23:34.518 --> 23:43.921
[SPEAKER_00]: And across the country, there's this sweep of violent fervor and activity, violent actions against Jehovah's Witnesses.
23:44.141 --> 23:50.163
[SPEAKER_00]: There were mob attacks that transpired in Illinois, Maryland, Maine, many, many states,
23:50.683 --> 23:54.445
[SPEAKER_00]: Jehovah's Witnesses were fired from their jobs after this decision dropped.
23:54.825 --> 23:58.327
[SPEAKER_00]: Children, of course, across the country were expelled from schools.
23:59.168 --> 24:11.715
[SPEAKER_00]: And I watched a short interview with Joan Bescupe, who is a Supreme Court historian, where she said, Jehovah's Witnesses were like, it wasn't just kind of like getting fired or sort of ostracized.
24:12.495 --> 24:14.576
[SPEAKER_00]: professionally are in educational institutions.
24:14.876 --> 24:17.136
[SPEAKER_00]: Jehovah's Witnesses were attacked in their homes.
24:17.177 --> 24:18.537
[SPEAKER_00]: They were pulled from their cars.
24:18.997 --> 24:21.858
[SPEAKER_00]: There were instances where people were literally tired and feathered.
24:22.278 --> 24:28.980
[SPEAKER_00]: They were pushed to do humiliating things like kiss the flag or like drink castor oil.
24:29.260 --> 24:32.681
[SPEAKER_00]: They were tied up and paraded through streets of small towns.
24:33.082 --> 24:40.264
[SPEAKER_00]: This really was like a wave that swept across the country of violent animosity against Jehovah's Witnesses.
24:41.084 --> 24:56.738
[SPEAKER_00]: A lot of people that were really shocked by this, government and public officials were really shocked by this, but there is a sense that the Supreme Court decision coming down is what sort of like a spark that accelerated.
24:57.319 --> 25:02.161
[SPEAKER_00]: pre-existing, persecution and discriminatory sentiment against Jehovah's Witnesses.
25:02.501 --> 25:12.105
[SPEAKER_00]: And it was the Supreme Court decision here at that like ignited this kind of like violent mob mentality against Jehovah's Witnesses in many, many places across the country.
25:12.685 --> 25:15.206
[SPEAKER_00]: So the Supreme Court justices are looking at this.
25:15.606 --> 25:16.687
[SPEAKER_00]: And everybody is looking at this.
25:16.727 --> 25:17.947
[SPEAKER_00]: The public is looking at this.
25:18.728 --> 25:24.310
[SPEAKER_00]: And realizing like, oh, our decision kind of did this.
25:24.830 --> 25:26.731
[SPEAKER_01]: Sorry, Tardin Feather is crazy.
25:26.971 --> 25:27.191
[SPEAKER_01]: Yeah.
25:27.271 --> 25:28.211
[SPEAKER_01]: That's a medieval shit.
25:28.251 --> 25:33.813
[SPEAKER_01]: I mean, if you don't know listener, Tardin Feathering is like, it's fucking torture.
25:34.153 --> 25:36.354
[SPEAKER_01]: It's like, you're painted with hot tar.
25:36.594 -->
25:39.615
[SPEAKER_01]: Like the shit that you see them like paving roads with.
25:39.675 --> 25:43.976
[SPEAKER_01]: It's wildly wildly painful and dangerous and is literal torture.
25:44.116 --> 25:48.517
[SPEAKER_01]: So that's crazy in the 1940s people being Tardin Feather.
25:48.537 --> 25:49.678
[SPEAKER_01]: Like that's fucking nuts.
25:50.038 --> 25:50.538
[SPEAKER_02]: Yeah.
25:50.638 --> 25:52.799
[SPEAKER_02]: So the Supreme Court is witnessing all of this.
25:53.579 --> 26:10.790
[SPEAKER_02]: the public is witnessing all of this and the same basic case comes back to the court a couple years later in 1943 West Virginia Board of Education be barred nets and the court completely flips by this time stone who wrote the descent is the chief justice.
26:11.450 --> 26:20.378
[SPEAKER_02]: But I think it's between the majority and the concurrences here, five justices flip, which is wild in the span of three years.
26:20.838 --> 26:28.805
[SPEAKER_02]: The majority says, one's right to life, liberty, and property to free speech, a free press freedom of worship and assembly may not be submitted to vote.
26:29.205 --> 26:32.688
[SPEAKER_02]: Fundamental rights depend on the outcome of no elections.
26:33.389 --> 26:36.491
[SPEAKER_02]: So, yeah, a complete inversion of the reasoning,
26:37.412 --> 26:38.193
[SPEAKER_02]: in Gabyteys.
26:38.433 --> 26:40.294
[SPEAKER_00]: In Gabyteys, they're like lead opposite.
26:40.474 --> 26:42.356
[SPEAKER_02]: Yeah, school districts, legislatures.
26:42.716 --> 26:45.378
[SPEAKER_02]: They have the right to make these decisions.
26:45.518 --> 26:47.379
[SPEAKER_02]: Courts can't infringe upon that.
26:47.619 --> 26:48.660
[SPEAKER_02]: We have no expertise.
26:48.740 --> 26:50.461
[SPEAKER_02]: They're in Barnett.
26:50.521 --> 26:51.261
[SPEAKER_02]: Total opposite.
26:51.322 --> 26:54.163
[SPEAKER_02]: They're like no legislature can encroach upon.
26:54.464 --> 26:57.646
[SPEAKER_02]: These rights that you have, that's built into the Constitution.
26:58.166 --> 27:08.604
[SPEAKER_02]: Looking back now, the idea that like someone's philosophy about the court's role vis-a-vis of the individual rights could completely flip on its head in the span of three years.
27:09.686 --> 27:09.866
[SPEAKER_02]: Right.
27:09.966 --> 27:11.589
[SPEAKER_02]: When you're a Supreme Court, just as crazy.
27:12.049 --> 27:12.330
[SPEAKER_02]: Crazy.
27:13.054 --> 27:20.336
[SPEAKER_00]: Yeah, yeah, I think it's really worth zeroing and on and like why we did the case, right, which isn't overturned decision, the goodbye decision.
27:20.376 --> 27:21.156
[SPEAKER_00]: It's overturned.
27:21.496 --> 27:23.037
[SPEAKER_00]: It's not the law of the land now.
27:23.297 --> 27:29.939
[SPEAKER_00]: Of course, like I would like to say predominant constitution understanding today is that you don't have to salute the flag and you don't have to stand for the pledge of allegiance.
27:30.499 --> 27:41.665
[SPEAKER_00]: So it's important though, like this very acute example of the Supreme Court switching quickly and you know, I think it's like interesting to kind of consider why.
27:41.685 --> 27:50.190
[SPEAKER_00]: One thing obviously is that they're struck, they're moved by this wave of violence that happens as a result of their decision.
27:50.330 --> 27:59.095
[SPEAKER_00]: But you have to think that psychologically intellectually that sort of forces them to reckon with the role of the court as a political actor.
27:59.655 --> 28:03.256
[SPEAKER_00]: even the logic in GabyteUS about like the court leaders and have a role in this.
28:03.716 --> 28:06.697
[SPEAKER_00]: These are political matters and we don't have anything to say about that.
28:06.717 --> 28:15.339
[SPEAKER_00]: The calculations that the public is called legislature makes on the balance of these liberties against government interests.
28:15.479 --> 28:19.840
[SPEAKER_00]: That's for other people to do and other government institutions and the public to do.
28:20.160 --> 28:21.280
[SPEAKER_00]: That's not for the court to do.
28:21.640 --> 28:25.181
[SPEAKER_00]: Three years later, because they see like how intense,
28:29.722 --> 28:37.224
[SPEAKER_00]: ended up being like to switch this quickly is an admission, I think, that, oh, yeah, we get it.
28:37.244 --> 28:38.364
[SPEAKER_00]: We are political actors.
28:38.784 --> 28:49.167
[SPEAKER_00]: We have political power in the system, and in order to sort of like write the wrong, literally, you know, like five justices are switching.
28:49.507 --> 28:52.228
[SPEAKER_00]: And three of them explicitly say, we were wrong.
28:52.508 --> 28:55.869
[SPEAKER_00]: I was wrong in joining the majority in goodbye to us, and I've
28:57.105 --> 29:04.907
[SPEAKER_02]: also sort of obviously lurking behind this is what's happening in Europe and the majority in Barnett does sort of hint at it, right?
29:05.007 --> 29:11.729
[SPEAKER_02]: Like if you go down this path of ostracizing minorities in your midst, there's an obvious danger there.
29:11.749 --> 29:17.210
[SPEAKER_02]: They don't talk about Hitler or Nazis or Europe specifically, but they're very clearly referencing it at a couple of points.
29:18.150 --> 29:23.532
[SPEAKER_02]: The only other thing I'll say here is that you would sort of think that this leads to like,
29:24.472 --> 29:39.239
[SPEAKER_02]: Maybe not a rights revolution, but an understanding of individual rights, an understanding of the idea that the denial of certain rights to discrete minority groups can send you down a dangerous path.
29:39.879 --> 29:45.202
[SPEAKER_02]: But the jurisprudence that immediately follows Barnett is like Quorumatsu.
29:45.382 --> 29:46.222
[SPEAKER_02]: It's like all of the cases.
29:46.242 --> 29:46.342
[SPEAKER_02]: Yeah.
29:47.703 --> 29:54.107
[SPEAKER_02]: saying that Japanese Americans can be treated as basically enemies in our midst.
29:54.427 --> 30:01.971
[SPEAKER_02]: So you sort of have this like in Coat
thought that the Supreme Court produces with Barnett in 1943, being like,
30:14.198 --> 30:17.439
[SPEAKER_02]: us, and our beautiful constitution from what's happening over there in Europe.
30:17.999 --> 30:21.700
[SPEAKER_02]: And then it's like, like, a me, they're like, that's said.
30:22.180 --> 30:22.800
[SPEAKER_02]: The Japanese.
30:24.241 --> 30:24.681
[SPEAKER_01]: It's crazy.
30:25.281 --> 30:25.601
[SPEAKER_01]: Right.
30:25.761 --> 30:26.921
[SPEAKER_01]: The trees in this Japanese.
30:27.102 --> 30:27.362
[SPEAKER_01]: Yeah.
30:27.762 --> 30:32.423
[SPEAKER_00]: You see this, like, for example, in the descent in Plessyview, Ferguson, which is decades before this,
30:32.923 --> 30:45.072
[SPEAKER_00]: where Justice Harland is like a soul-decenter and like saying the right things, basically like the constitution, we should be understanding the constitution as as colorblind, we should not be allowing discrimination, this kind of thing.
30:45.152 --> 30:49.555
[SPEAKER_00]: And there's a whole, there's a whole paragraph where he's like, but accept if the person's Chinese.
30:53.737 --> 31:04.382
[SPEAKER_00]: So there are all, you know, everybody, everybody in the court has their maybe some lofty deals about some minorities that should be protected, but definitely racism for others.
31:04.762 --> 31:07.284
[SPEAKER_02]: It's one of those things that you see to say in certain contexts, right?
31:07.304 --> 31:10.025
[SPEAKER_02]: And if you read like the modern conservatives.
31:10.925 --> 31:14.628
[SPEAKER_02]: and just isolated some of the lofty shit they say, right?
31:14.949 --> 31:18.372
[SPEAKER_02]: It might sound like they're great defenders of individual rights and liberties.
31:19.012 --> 31:23.076
[SPEAKER_02]: Of course, where the rubber meets the road, they're not at all.
31:23.556 --> 31:27.500
[SPEAKER_02]: It's easy in certain contexts to say, but then when the question is,
31:27.880 --> 31:34.405
[SPEAKER_02]: Hey, as part of our war effort, right, the greatest war the countries that were seen, can we present Japanese Americans?
31:35.025 --> 31:37.087
[SPEAKER_02]: Or are you going to tell us that we can?
31:37.127 --> 31:40.289
[SPEAKER_02]: Are you going to tell the government that we can't fight this war the way we want to fight it?
31:40.349 --> 31:41.450
[SPEAKER_01]: Yeah, they back off.
31:41.510 --> 31:46.294
[SPEAKER_01]: More recently, you know, they overturn Kormatsu in the case that upheld the Muslim band.
31:46.374 --> 31:46.554
[SPEAKER_02]: Right.
31:46.734 --> 31:52.638
[SPEAKER_01]: And recapitulated Kormatsu's logic, it's just you read the old cases and it feels very familiar.
31:52.658 --> 31:53.279
[SPEAKER_01]: Yeah.
31:53.299 --> 31:54.240
[SPEAKER_02]: Very, very familiar.
31:54.260 --> 31:54.440
[SPEAKER_02]: Yeah.
31:54.940 --> 32:03.207
[SPEAKER_02]: And there's one last thing I wanted to say about this, which is that I was thinking about Clarence Thomas's position on student rights.
32:03.928
--> 32:07.891
[SPEAKER_02]: Clarence Thomas has expressly said that he doesn't believe that the first amendment exists in the classroom.
32:07.991 --> 32:10.093
[SPEAKER_02]: He doesn't believe that students have speech rights.
32:10.713 --> 32:14.457
[SPEAKER_02]: Now it's hard to know where he would stand in the religious context.
32:14.977 --> 32:18.020
[SPEAKER_02]: But if you look at his statements and read him literally,
32:18.660 --> 32:25.262
[SPEAKER_02]: It's kind of interesting, because Clarence Thomas, if you're reading his shit literally, might actually agree with Gabyte.
32:25.422 --> 32:33.784
[SPEAKER_02]: He might actually agree with the majority here that the court has no role, and that the classrooms are like a setting where the constitution doesn't really penetrate too much.
32:34.464 --> 32:46.968
[SPEAKER_02]: That's, I mean, that's pretty fucking wild to think that this case, which is like a symbol of like our pre-individual rights understanding of the constitution, might actually align relatively well with Clarence Thomas's perspective.
32:47.310 --> 32:49.852
[SPEAKER_01]: as the resident Clarence Thomas reader.
32:49.872 --> 32:50.693
[SPEAKER_00]: Hmm.
32:51.153 --> 32:53.135
[SPEAKER_00]: I was just about to say, what do you think, Michael?
32:54.976 --> 32:59.680
[SPEAKER_01]: I would say his attitude towards the classroom is almost the area where he's most explicitly fascist.
32:59.840 --> 33:00.120
[SPEAKER_02]: Right.
33:00.520 --> 33:02.402
[SPEAKER_00]: Yeah, it's extremely authoritarian.
33:02.542 --> 33:03.082
[SPEAKER_00]: Yeah.
33:03.122 --> 33:04.744
[SPEAKER_00]: Children don't have rights.
33:05.004 --> 33:05.244
[SPEAKER_00]: Yeah.
33:05.805 --> 33:08.246
[SPEAKER_01]: And so I bet he would love mandatory pledges.
33:08.367 --> 33:09.788
[SPEAKER_01]: Like I bet he'd be all about it.
33:09.888 --> 33:11.249
[SPEAKER_02]: I mean, what's the original perspective here?
33:11.269 --> 33:12.390
[SPEAKER_02]: What was happening at the founding?
33:12.910 --> 33:14.731
[SPEAKER_02]: Could you mandate the pledge at the founding of course?
33:15.772 --> 33:16.272
[SPEAKER_02]: Yeah, of course.
33:16.672 --> 33:33.456
[SPEAKER_02]: Yeah, you read a case like this and you think like oh, this is just an artifact of a of a different era, right where We didn't have this understanding of individual rights and it was different and then it's overturned and we sort of moved on as a society But there are members of the Supreme Court who would return to this in a heartbeat.
33:33.476 --> 33:39.418
[SPEAKER_02]: Yeah, the opportunity with there I feel like some people are like, oh, they want to roll us back to 2014 or something like no dude.
33:39.458 --> 33:40.058
[SPEAKER_02]: Like no dude 35.
33:40.078 --> 33:40.458
[SPEAKER_02]: I think 35
33:45.559 --> 34:01.109
[SPEAKER_00]: Yeah, and you know, we do have like several cases now, Supreme Court landmark decisions, clarifying the first amendment, especially around like mandates or, you know, public expectations that you express patriotism in certain ways.
34:01.149 --> 34:09.675
[SPEAKER_00]: You know, Scalia, Clarence Thomas's buddy, Scalia, famously writes the opinion and Texas V. Johnson, which is like a late 80s case that says,
34:10.275 --> 34:19.703
[SPEAKER_00]: that flag burning can't be criminalized because flag burning constitutes symbolic speech that's protected by the first amendment.
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[SPEAKER_00]: So, you know, to go, you know, in 1940 in Gabitas, Frank Ferdere talking about like we live by symbols and symbols have to be upheld to obviously over the course of a few more decades understanding that speech can be symbolic as well, including
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[SPEAKER_00]: you know, lighting the flag on fire or sitting during patriotic expressions of speech.
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[SPEAKER_00]: And so yeah, we now have symbolism understood in the first amendment as something that constitutes speech and is therefore like one of these individual liberties that is protected in a lot of context, but we've talked over and over again how there is this body of jurisprudence about children
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[SPEAKER_00]: exceptions on all of these rules.
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[SPEAKER_01]: I personally stood and kept my hands in front of me, did not cover my heart and did not recite the pledge.
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[SPEAKER_01]: That's what I did.
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[SPEAKER_01]: And I remember there being a whole big thing about it, about how not that I wasn't doing it, but there was a whole big thing about how you don't have to recite the pledge, but it would be nice if you could stand respectfully during it.
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[SPEAKER_00]: We would say it every day in elementary school.
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[SPEAKER_00]: And I swear I've talked on the podcast before that the state of Texas also has a pledge of allegiance.
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[SPEAKER_00]: So we would do the US pledge of allegiance and then we would do the Texas pledge of allegiance.
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[SPEAKER_02]: Let's hear it.
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[SPEAKER_00]: Honored the Texas flag, I pledge allegiance to the Texas one and indivisible.
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[SPEAKER_02]: awful dude what it doesn't even feels like a fragment like you're not even full sentence first of all barely coherent as grammar yeah invisible thing makes sense in the context of like the union of states but you can't just throw that language in the text is pledge it doesn't make any sense okay they
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[SPEAKER_00]: Yeah.
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[SPEAKER_00]: And then in middle school, in junior high, we didn't have to say the pledge until nine eleven.
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[SPEAKER_00]: And then the school, we would do the pledge of allegiance on Fridays.
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[SPEAKER_02]: Yeah, I'm not from like a particularly conservative area, but we did it daily.
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[SPEAKER_02]: I think from K to 12, I probably wasn't doing it consistently just as a kid who's, you know, sat in the back of the room and goofed off with his friends, but as a matter of principle, once we hit like the Iraq War era, and I became like, I was like more politically aware, I would just not say the pledge.
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[SPEAKER_02]: Most teachers didn't give a shit, but I had one conservative
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[SPEAKER_02]: And I think my senior year of high school who requested that I at least take my hat off.
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[SPEAKER_02]: He's like, I know you don't have to, but I am asking you.
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[SPEAKER_02]: And I was like, all right, you know, you're being polite about it.
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[SPEAKER_02]: I'll take my hat off.
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[SPEAKER_02]: He was like, look, I'm a veteran.
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[SPEAKER_02]: And I was like, maple reserves, but okay.
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[SPEAKER_02]: But you know, I remember, I remember that like other people were watching.
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[SPEAKER_02]: And he was trying to do it politely.
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[SPEAKER_02]: He was like trying to do it
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[SPEAKER_02]: You do not have to do this.
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[SPEAKER_02]: This is just for quests.
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[SPEAKER_01]: I was like, go on, you know, I have all the power here.
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[SPEAKER_01]: As like a little mispeater of the magnanimous.
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[SPEAKER_01]: Right.
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[SPEAKER_02]: As a misbehaving bastard child, like this is like the best thing that can happen is like a teacher being like, I have a favor.
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[SPEAKER_02]: I'm like, yes, go on.
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[SPEAKER_02]: It was an everyday thing.
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[SPEAKER_02]: I'm shocked that in Texas you were doing it once a week.
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[SPEAKER_02]: That's crazy.
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[SPEAKER_00]: Yeah, yeah.
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[SPEAKER_02]: Yeah, and it is also very funny to only start doing it after 9-11.
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[SPEAKER_01]: Yes, that's a good thing.
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[SPEAKER_02]: Actually, that is a great thing.
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[SPEAKER_02]: Whoop!
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[SPEAKER_00]: obvious.
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[SPEAKER_02]: Oh, yeah.
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[SPEAKER_02]: Oh, we got hit.
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[SPEAKER_02]: Guys, we got hit.
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[SPEAKER_01]: We got a, uh, we got to tighten up our, uh, our, our, our national unity here.
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[SPEAKER_01]: Yeah, we have been slacking, um, the national unity.
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[SPEAKER_02]: Alright folks, next week, in honor of the Halloween season, a spooky episode, talk about a movie, the Devil's Advocacy, the movie containing the most overlap between spookiness and law that we could think of.
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[SPEAKER_02]: Yes, okay.
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[SPEAKER_00]: A movie that asks the question, what is high-powered lawyer?
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[SPEAKER_00]: Devil.
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[SPEAKER_02]: Hmm, you've seen high-powered lawyers very close to devil, but what if actual what if actually Just a just a baby step a baby step in that direction.
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[SPEAKER_02]: Yeah, small logical leap
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[SPEAKER_02]: Follow us on social media at five four pod subscribe to our patreon patreon.com slash five four on all spelled out for access to premium and add free episode special events are slack all sorts of shit.
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[SPEAKER_02]: See you next week.
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[SPEAKER_00]: Bye y'all.
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[SPEAKER_01]: Bye everybody.
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[SPEAKER_01]: Five to four is presented by prologue projects.
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[SPEAKER_01]: This episode was produced by Alice and Rogers.
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[SPEAKER_01]: The unnafock provides editorial support.
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[SPEAKER_01]: Our website was designed by Peter Murphy.
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[SPEAKER_01]: Our artwork is by Teddy Blanks at Chips and Y.
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[SPEAKER_01]: And our theme song is by Spatial Relations.
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[SPEAKER_01]: I've got a case that go by this.
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[SPEAKER_01]: My wife, she's always telling me.
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[SPEAKER_01]: Yeah, yeah, they're by us.