Protecting and Promoting the Right to Differ: an Evolutionary Perspective and the Continuing Rightfulness of Barnette

-- By ThomasHou? - 01 Dec 2011

"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. . . . [W]e apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. . . . We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

Justice Jackson's opinion in Barnette, which prohibited a state from compelling students to salute and pledge to the American flag, maintains its place in American lore not just through its eloquent words but also through its evocation of fundamental ideas. No idea is perhaps more fundamental than the First Amendment.

Why do we have the First Amendment? To have free expression. Why do we have free expression? Thomas I. Emerson grouped the reasons into four: 1) assuring individual self-fulfillment, a cornerstone of Western philosophical thought; 2) attaining truth and knowledge through debate and a "marketplace of ideas"; 3) providing for universal participation in decision making; and 4) achieving an adaptable yet stable community. Although Barnette hints at all four, I believe the last one is most prominent in Barnette and is more important than ever today. The basic premise is: free expression allows for the development and sharing of new ideas - which often comes through the right to differ at the core of free expression - while suppression shutters those new ideas in favor of old ideas and stultification. A society needs new ideas and flexibility to adjust to changing circumstances and to achieve social progress.

Evolution theory supports this premise. In nature, individual organisms, even those that live in "societies" like man's, live in a changing and unpredictable environment. Within a species or genus, individuals possess different traits that produce various advantages or disadvantages according to natural conditions. That variation allows a species to survive and prosper - those with favorable traits survive and pass them along to the next generation. For humans in societies, the same theory should hold true. The world is changing, faster than ever, and is unpredictable. Beyond our physical differences, it is our intellectual differences that distinguish ourselves and our societies. Unlike natural traits, intellectual traits and ideas can be self-developed and expressed, so long as society tolerates them. Having intellectual diversity and promoting it allows society to develop new ideas and question old ideas. This process prevents social conformity and stagnation, and allows a society to adapt to and thrive in a changing world.

Conventional wisdom says sociocultural evolution is Lamarckian, i.e. through acquired inheritance of culture from one generation to the next. While I do not dispute its overall Lamarckian character, I think cultural evolution at the individual level, and the level from the individual to society, is Darwinian. After all, all culture originate from individuals and they individually and as a group practice and transmit culture through time. At that individual level, creativity is essential and individuals shape a society's culture. Bob Dylan's expression through his songs heralded the culture of the 60s and the protest era. Galileo's expression of his scientific discoveries ushered in acceptance of the heliocentric theory and a new scientific culture. Both acted upon their right to differ within cultures of social conformity.

Barnette was a clash between the individual right to differ and the collective interest in national unity. In rejecting the latter, Justice Jackson relied much on Darwinian ideas of sociocultural evolution. He reached into history to show how social conformity ultimately fails and only deadens societies, such as the Romans driving out Christianity and the Inquisition driving out Jews. He then rejected that free expression could be submitted to majority rule at the ballot box; such proposition would undercut the individual focus of the First Amendment's protections. Finally, he implicitly espoused the Darwinian theory about the source of intellectual diversity: those with abnormal attitudes, those espousing beliefs contrary to the social order, i.e. those who differ, are the exceptional minds that drive intellectual and social progress. The right to differ and free expression at the individual level affect society at the collective level. State orthodoxy and compelled speech are unconstitutional because they would stamp out the vital right to differ implicit in the First Amendment.

This theory holds true today. Free expression drives innovation. Developing new ideas and ways of communicating them to the public is vital. We have more tools with the Internet. But we still need to act. On the world wide web, we need to protect not only those with new ideas, but also those who receive and can benefit from the new ideas. They can share and experiment with new ideas, and challenge old ideas. We must build a "democratic culture," which Jack Balkin describes as a place where ordinary citizens can participate in digital creativity and not just be passive observers or consumers. To achieve that, we continue to need free expression and the right to differ - the right to challenge old attitudes and propose new ones. Barnette 's principles, ancient as they may seem, remain fresh.