West Virginia State Board of Education v. Barnette · ¶82

The right of West Virginia to utilize the flag salute as part of its educational process is denied because, so it is argued, it cannot be justified as a means of meeting a “clear and present danger” to national unity. In passing it deserves to be noted that the four cases which unanimously sustained the power of states to utilize such an educational measure arose and were all decided before the present World War. But to measure the state’s power to make such regulations as are here resisted by the imminence of national danger is wholly to misconceive the origin and purpose of the concept of “clear and present danger.” To apply such a test is for the Court to assume, however unwittingly, a legislative responsibility that does not belong to it. To talk about “clear and present danger” as the touchstone of allowable educational policy by the states whenever school curricula may impinge…

U. S. Reports, bound volume
U. S. Reports, volume 319, at 624 (Library of Congress) · transcription: Caselaw Access Project
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