What Clarence Thomas's Video-Games Dissent Tells Us About 'Originalism'

By Garrett Epps

The Justice's interpretation of the Constitution is one of pick-and-choose history


There is much to chew over in the Supreme Court's two First Amendment decisions, Brown v. Entertainment Merchants Association and Arizona's Free Enterprise Club's Freedom Club PAC v. Bennett. They provide an intriguing contrast in First Amendment methodology, and though both reach nominally speech-protecting results, they do so with differing rationale and differing lineups on the various sides of the issue.

But one thing is liable to be lost in the result: Justice Thomas's dissent in Entertainment Merchants Association, the violent video games case, which provides a revealing window in the limits (if that is the term) of the "originalist" methodology. It's easy to ignore Thomas's solo dissents, which seem destined for obscurity; but they are often fascinating reading.

As I've written before, "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.  But the fact is that, in nine cases out of ten, "originalists" are the ones employing free-form interpretive techniques, applying them to carefully selected historical materials rather than to the text and structure of the Constitution. The result is a claim that ancestral voices have told them how to resolve present legal disputes.  Justice Thomas's dissent should stand, for a while, as the most egregious example of this voices-in-my-head originalism. Indeed, one could go further and point to it as an example of how "originalism" can become entirely unmoored from reality and drift dangerously toward what Newt Gingrich might once have called "right-wing social engineering."

To recap, Entertainment Merchants concerned a California statute that made it a crime to sell a "violent video game" to a minor--defining "violent video game" as one that "appeals to a deviant or morbid interest" in violence, is "patently offensive" to community standards, and lacks "serious literary, artistic, political, or scientific value for minors."  The Court today decided, 7-2, that the statute is unconstitutional.  In his opinion for five Justices, Justice Scalia writes a textbook First Amendment opinion. He notes that violent expression (unlike obscenity or fraud, for example) is not a "historical exception" to the First Amendment, and that because it is not, the government must prove that its content-based restriction on video games passes "strict scrutiny." Not surprisingly, it does not. (Justice Alito, joined by Chief Justice Roberts, write separately to say that the California statute should be struck down only because its definition of "violent video game" is vague.)

The two dissenters make an odd couple: Thomas, the most rigidly conservative Justice, and Stephen Breyer, perhaps the Court's most self-conscious progressive.  Both dissents exhibit a kind of unmoored philosophy.  Breyer's method, which merits its own post, basically slips past the First Amendment by suggesting that new technology has made it largely obsolete, and that it should be enforced, if at all, by courts that eschew historical analysis or caselaw in favor of an ad hoc balancing of the value of speech against the expected social value of regulation or suppression.  

Thomas takes a different approach.  The majority's decision, he writes, "does not comport with the original public understanding of the First Amendment...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."

How do we know this? (Remember that oral argument, no less conservative a figure than Justice Samuel Alito ridiculed Scalia for a question that suggested he wanted to know "what James Madison thought about video games.... Did he enjoy them?") 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."

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.

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.

Thomas writes for only himself in Brown.  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.) 

But remember that Sigmund Freud and other great psychiatrists have learned about the normal mind by studying the abnormal mind.   Justice Thomas isn't qualitatively different from other "originalists," including Justice Scalia when he is wearing the originalist hat.  Thomas is just like them, only a little more so; and studying his bizarre method may give us some immunity to later claims, which may be subtler but will be no less erroneous.

Image Credit: Larry Downing / Reuters

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