John Durand, The Rapalje Children
1768, New-York Historical Society
In his remarkably undistinguished 20-year stint as a Supreme Court justice, Clarence Thomas has rarely called attention to himself for original jurisprudential thinking. Actually, he’s been more or less a deaf mute. But earlier this week, Clarence Thomas let loose a wild dissent of Justice Antonin Scalia’s majority opinion not to uphold the California ban on the sale of violent video games to minors, finding that such games represent speech protected by the First Amendment. Thomas’ issue wasn’t that Ben Franklin didn’t have an Xbox, rather he dissented on: Originalist, First Amendment Parenting Grounds.
As Thomas explains at great length, like a mute suddenly given the gift of speech: “The practices and beliefs of the founding generation establish that ‘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.” In other words, Thomas would uphold the California ban because the Framers never intended to protect “speech to minor children bypassing their parents.” Has Thomas dug up legal precedent from the founding period holding that entertainment for children can be restricted or banned? Indeed he has not.
What he has instead is his own survey of a century and a half of attitudes toward child-rearing, concluding that in the 18th Century parents were really fucking strict! In 1648, a child in Massachusetts could be hanged if he “disobeyed ‘the voice of his Father, or his Mother”! He describes early school textbooks containing “vignettes illustrating the consequences of disobedience,” including one called “Pictures of the Vicious ultimately overcome by misery and shame,” and an 1848 treatise warning that the “number of children who die from the effects of disobedience to their parents is very large.” He cites the work of Lydia Maria Child (first active a half-century after the First Amendment was framed), and 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.” Thomas gives nod to Rousseau and to John Locke, the 17-century British philosopher whose views on political liberty helped shape the U.S. Constitution, maintaining that cultivating citizens’ minds and character went beyond government’s legitimate function, is dependent on moral education. As Thomas points out, Locke wrote in his highly influential “Some Thoughts Concerning Education” that the family was essentially responsible for children’s education. For Locke and for the founders, the proper exercise of parental authority meant inculcating in young citizens the virtues that allow for the responsible exercise of liberty.
Like a nostalgic colonial tiger mom, Thomas launches into a wild and discursive examination of the Joys of Puritanical Parenting. He scoots through time, from the late 17th century in “the New England Colonies, [where] fathers ruled families with absolute authority,” to 18th-century Monticello, where he cites – with perceptible nodding approval- Thomas Jefferson’s bossy letters to his 11 year old daughter, Patsy, in which he reprimands her dress, her work ethic, her manners, and dictates an exhaustive minute by minute schedule. “The Puritans rejected many customs, such as god-parenthood, that they considered inconsistent with the patriarchal structure,” Thomas notes. He observes that colonial parents were warned not to “let their children read ‘vain Books, profane Ballads, and filthy Songs’ or ‘fond and amorous Romances, … fabulous Histories of Giants, the bombast Achievements of Knight Errantry, and the like.’ Thomas observes that John Adams, Noah Webster, Sir William Blackstone, and others were adamant that the pliability of the youthful mind required vigilance in the upbringing of one’s children, and that this imperative was impressed upon the Founders.
Detailing the rights of the colonial child (“you are your Father’s property”), Thomas concludes that “[i]n light of this history, the Framers could not possibly have understood ‘the freedom of speech’ to include an unqualified right to speak to minors.” In his view, such speech has “been historically unprotected [and has] not yet been specifically identified or discussed as such in our case law.” Unlike Scalia, who isn’t inclined to create new classifications of unprotected speech, Thomas wants to scoot back in time and restore an old one: the right to have nobody else speak to your child.
We continue to follow the dictate of the long dead founding fathers because they left behind a Constitution ratified by a majority of voters alive at the time, records of laws that still apply, and records of opinions rendered by their courts. We use those inheritances from dead Americans, because they were written down, by courts, reaching opinions on cases at bar. We don’t guess at their feelings beyond what they wrote down. Either their rules work and can be extended by analogy to the present, or they don’t.
It is unpersuasive that a law from the Massachusetts Bay Colony, letters from Jefferson to his tween daughter, excerpts from John Locke and a 19th century author constitute some definitive statement by the Framers as to whether kids have any right to speech aside from what their parents allow. But, that is originalism for you! Stretching arbitrarily selected tidbits of history to cover gaps in the jurisprudence on a given issue. Originalism is jurisprudence’s equivalent to intelligent design, pretending that there’s an Answer if only we are willing to scour the diaries and scrap cans of the Framers, an Answer that is in accord with something the justice himself happens to feel. Originalists fallacious appeals to tradition are marginally more comical and offensive (Lipton teabag hat notwithstanding), than the progressives’ denial of modern realities ( i.e equality under the law does not guarantee that every kid can grow up to be an astronaut or an animal doctor, or that rational and reasonable actions will rule the day, or that there are certain individuals who need to be culled from the herd).
At the risk of sounding teabaggy, we are blessed by our country having been founded by a gaggle of literal geniuses who feather-penned a constitution that limits the intrusions government can make into our personal lives. Free of paternalistic rule, we are enormously burdened with personal responsibility, hence the schism, when you live in what has become a grossly irresponsible society. Time and again the “Supreme Justices” demonstrate that the struggle between fundamental principles and modern realities draws into sharp contrast the strength and weakness of a living constitution: unless one is willing to make wholesale re-interpretations to comport with changing community standards and factual realities, one is highly constrained to minor interpretive variations which may fail to adequately address modern and wholly unanticipated conditions. God knows, most us – not all (JimBob Dugger ) – would be better served if kids listened to their parents, if ten year-olds were not assaulted with homicide, tobacco and porn, if parents were largely engaged in the daily lives of their kids and if predators were less apt to prey upon youthful “idea” consumers. Clarence Thomas, borderline imbecile, is incapable of realizing that a 17th century kid and a 21st century kid are barely of the same species, and applying the same set of presuppositions to both is ridiculous.
Ultimately, Scalia dismissed most of Thomas’ argument in a terse footnote in his majority opinion. If Thomas’ views were to prevail, writes Scalia, children could not be solicited to attend rallies or church services unless their parents agreed (and how then would we indoctrinate 6 year olds into their wacky fold via tea party rallies and evangelical church services?).
In the end, we either plod along with what we are both blessed and burdened, or we readdress our constitution to make it relevant for the next century… ..we just need one person living with one ounce of the brains, and the balls of a Jefferson, Franklin or Morris…..