I meant to write a post about how Justice Clarence Thomas' dissent from yesterday's Supreme Court opinion striking down a ban on selling violent video games to children didn't involve any actual case law, but Garrett Epps beat me to it, and probably did it better than I would have anyway:
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.
In practice, this is how a lot of originalism works -- you substitute your personal views, attribute them to the Framers, then declare yourself the one true arbiter of constitutional interpretation and call it a day. The law needn't actually enter into it.
The worst part about Thomas' dissent, however, is that it's a non sequitur. Nothing in the majority opinion curtails the ability of parents to restrict their own child's access to violent video games; it just says the state can't do it for them. Instead of a legal opinion, Thomas wrote a pamphlet advertising the effectiveness of seventeenth century child-rearing practices.
