What would the Founders do?Scalia and Thomas disagree on originalism.

Reporter July 3, 2011

Justice Clarence Thomas last week called upon “father of liberalism” John Locke, 18th-century philosopher Jean-Jacques Rousseau, the Puritan tradition, and American icons Thomas Jefferson and Noah Webster to announce a constitutional finding that his colleagues considered startling:

The First Amendment does not convey a free-speech right when minors are involved.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

Thomas dissented from the court’s decision in Brown v. Entertainment Merchants Association that violent video games, like books and movies, are protected forms of free speech. The ruling found that California’s ban on the sale or rental of such games to those under 18 violated the Constitution.

That could not be so, Thomas said.

“The Framers could not possibly have understood ‘the freedom of speech’ to include an unqualified right to speak to minors,” Thomas wrote. “Specifically, I am sure that the founding generation would not have understood ‘the freedom of speech’ to include a right to speak to children without going through their parents.”

Thomas’s argument was the logical extension of his “originalist” position that the Constitution’s provisions be discerned by the most likely public understanding at the time it was adopted.

But his dissent was even more intriguing because the author of the court’s majority decision was the court’s other originalist, Antonin Scalia. He addressed Thomas in a footnote:

“He cites no case, state or federal, supporting this view, and to our knowledge there is none,” Scalia wrote.

“What would the Founders do?” had been part of the case from the start. At oral arguments, Scalia was adamant that depictions of violence had never been found to lack First Amendment protection.

Justice Samuel A. Alito Jr. jibed: “What Justice Scalia wants to know is what James Madison thought about video games.”

“No,” Scalia snapped, “I want to know what James Madison thought about violence.”

Thomas, on the other hand, wanted to know what Madison and the others thought about children.

After consulting Locke and Rousseau, examining Jefferson’s demanding schedule for his daughter (“dictating her daily schedule of music, dancing, drawing and studying”) and noting Webster’s concern for what children read (“Vice always spreads by being published,” he said), Thomas had an answer.

“The 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,” he wrote.

In Thomas’s works about the duties of parents, it is easy to conjure the image of his iron-willed grandfather, Myers Anderson, who raised Thomas after the justice’s father abandoned the family. Anderson was a strict disciplinarian who wouldn’t let Thomas play on sports teams or join the Cub Scouts but who saved Thomas from a life of poverty and neglect, Thomas wrote in his book “My Grandfather’s Son.”

Thomas has expressed, in previous court cases, his belief that minors have limited rights to protest school officials’ decisions, and he said in the California case that “the question is not whether certain laws might make sense to judges or legislators today, but rather what the public likely understood ‘the freedom of speech’ to mean when the First Amendment was adopted.”

Scalia dismissed Thomas’s argument but did not engage in an originalist debate. He said the view “ignores” court precedent about the rights of minors. And he said it could criminalize allowing minors to attend political events or even church without parental permission.

Liberal commentators have said Thomas’s dissent is another example of extreme views — no other justice signed on. But even some who study originalism said Thomas failed to make his case.

“I guess I would say it’s a little underdeveloped,” University of San Diego law professor Michael Rappaport said diplomatically. Rappaport runs the law school’s Center for the Study of Constitutional Originalism.

In an interview and in a posting on the Originalism Blog, Rappaport said attitudes about children at the time the First Amendment was written don’t necessarily mean that freedom of speech did not extend to children.

Fellow professor Michael D. Ramsey, a former Scalia clerk, agreed the theory needed work. “I have doubts whether one can reliably infer specific legal conclusions from general social attitudes,” Ramsey wrote. “That Jefferson was a controlling father doesn’t say much about [daughter] Martha’s legal right to talk to others without his permission.”

But neither was prepared to say flatly that Thomas was wrong, and Rappaport said he may well be right.

Originalism is still a relatively young theory of constitutional interpretation, he said, and “there’s still a lot of work that needs to be done.”

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GRAPHIC: Supreme Court Roundup, 2010-2011

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