The Supreme Court in Brown v Entertainment Merchants Association on Monday struck down on First Amendment grounds a California law that banned the sale of violent video games to children. The 7-to-2 decision was the latest in a series of rulings protecting free speech, joining ones on funeral protests, videos showing cruelty to animals and political speech by corporations.
The majority opinion written by Justice Antonin Scalia summed up this case well - and others about restricting free speech: "No doubt a state possesses legitimate power to protect children from harm. But that does not include a free-floating power to restrict the ideas to which children may be exposed."
However, Justice Thomas said the drafters of the First Amendment did not understand it to protect minors' free speech rights. " 'The freedom of speech,' as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians," Justice Thomas wrote. Basically saying, that children should be seen and not heard.
His opinion is at the far edge of current constitutional discourse. (Note that, as applied, it would strip all First Amendment protection, whether at school or in public discourse, from anyone under 18.)
Thomas likes to claim that he is an "originalist. "originalists" like to claim that they are restrained and faithful in their constitutional interpretation, while all others are mushy-minded "living constitutionalists" who twist the Constitution to meet their present policy desires. Yet, the majority of times, they are the ones who actually twist the Constitution to meet their present policy desires. Nowhere is it more prevalent in this case with Thomas.
Have Thomas's clerks found legal cases from the founding period holding that entertainment for children can be restricted or banned?Indeed they have not. Instead, the dissent conducts a survey of a century and a half of attitudes toward child-rearing, concluding not surprisingly that in the 18th Century parents were pretty darn strict. Drawing on Puritan theology of a century before the framing (did you know, gentle reader, that in 1648, a child in Massachusetts could be hanged if he "disobeyed 'the voice of his Father, or the voice of his Mother'?"), the thought of John Locke, and even the work of Lydia Maria Child (who was first active a half-century after the First Amendment was framed), he concludes that "[t]he history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children." Thus, "the Framers could not possibly have understood 'the freedom of speech' to include an unqualified right to speak to minors." Not only is this "circular" reasoning, basically making up anything that sounds half way intelligent to get the result you want, but it is just flat out WRONG.
The most famous example of this kind of "originalist" reading is Chief Justice Roger B. Taney's opinion in Dred Scott v. Sandford, in which he concluded that persons of African descent could never become American citizens. True, the Constitution includes no racial restriction on citizenship; true, the very Declaration of Independence asserted that "all men are created equal"; but that term could not have included black people. The Framers were just not that kind of people:"[I]t is too clear for dispute that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted [the Declaration of Independence], for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted, and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation."
In construing the Constitution, we don't look at what it says; we don't look at caselaw; we look only at what we "know" about the men who framed it. And when those voices have spoken, the inquiry is at an end. Think Justice Thomas would agree with the Dred Scott ruling? I doubt it.
This is the most naked of all "originalist" claims: even if there is no evidence about the legal issue at hand, we all know what kind of people the Framers were, and thus we all know what they would have thought of this issue. No caselaw--indeed, no law at all--needed.
However, the biggest flaw in trying to interpret "what kind of people" the framers were and what they thought is that they were all very different people with different views. For example, Alexander Hamilton thought that the Constitution should be interpreted very liberally and expansive, yet Thomas Jefferson believed in a strict constructionalist view. So, how can one in the 21st century actually "know" what someone in the 19th century actually thought?