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Source link: http://archive.mises.org/17441/justice-thomas-longs-for-a-more-puritan-america/

Justice Thomas Longs for a More Puritan America

June 27, 2011 by

The US Supreme Court today upheld the decision of two lower courts to prevent the State of California from banning the sale of “violent video games” to any person under the age of 18. The Court said the state’s law violated the First Amendment’s protections for freedom of speech. (And before anyone points it out in the comments, yes it violates Kinsellan libertarianism for a federal court to apply the Bill of Rights to the states; I’ll stipulate that, but this post isn’t about libertarian centralism, so let’s move on.) Justice Antonin Scalia and four of his colleagues said that video games are just another form of expression — no different than books or movies — and that the government could not “create a wholly new category of content-based regulation that is permissible only for speech directed at children.”

Two other justices, Samuel Alito and John Roberts, reluctantly agreed that the California law violated the First Amendment, but they wrote separately to express their discomfort with violent video games, noting, “There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.” Justice Stephen Breyer dissented outright, saying the ban was a “modest” restriction on free expression that was justified because, well, elite opinion holds that violent video games are bad for children. 

And then we have Clarence Thomas, the only other dissenter, who authored the judicial equivalent of a conniption. His position is that, “‘The freedom of speech,’ as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians.” And when he says “as originally understood,” he means as understood by Puritans who settled the United States long before there even was a First Amendment:

In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority. “The patriarchal family was the basic building block of Puritan society.” S. Mintz, Huck’s Raft 13 (2004) (hereinafter Mintz); see also R. MacDonald, Literature for Children in England and America from 1646 to 1774, p. 7 (1982) (hereinafter MacDonald). The Puritans rejected many customs, such as godparenthood, that they considered inconsistent with the patriarchal structure. Mintz 13.

Part of the father’s absolute power was the right and duty “to fill his children’s minds with knowledge and . . . make them apply their knowledge in right action.” E. Morgan, The Puritan Family 97 (rev. ed. 1966) (hereinafter Morgan). Puritans thought children were “innately sinful and that parents’ primary task was to suppress their children’s natural depravity.” S. Mintz & S. Kellogg, Domestic Revolutions 2 (1988) (hereinafter Mintz & Kel- logg); see also B. Wadsworth, The Well-Ordered Family 55 (1712) (“Children should not be left to themselves . . . to do as they please; . . . not being fit to govern themselves”); C. Mather, A Family Well-Ordered 38 (1699). Accordingly, parents were not to let their children read “vain Books, profane Ballads, and filthy Songs” or “fond and amorous Romances, … fabulous Histories of Giants, the bom- bast Achievements of Knight Errantry, and the like.” The History of Genesis, pp. vi–vii (3d ed. corrected 1708).

This conception of parental authority was reflected in laws at that time. In the Massachusetts Colony, for example, it was unlawful for tavern keepers (or anyone else) to entertain children without their parents’ consent. 2 Records and Files of the Quarterly Courts of Essex County, Massachusetts, p. 180 (1912); 4 id., at 237, 275 (1914); 5 id., at 143 (1916); see also Morgan 146. And a “stubborn or rebellious son” of 16 years or more committed a capital offense if he disobeyed “the voice of his Father, or the voice of his Mother.” The Laws and Liberties of Massachusetts 6 (1648) (reprint M. Farrand ed. 1929); see also J. Kamensky, Governing the Tongue 102, n. 14 (1997) (citing similar laws in the Connecticut, New Haven, Ply- mouth, and New Hampshire Colonies in the late 1600’s).

Please note, this is Thomas writing in his official capacity as a Supreme Court justice. He goes on and on like this at some length. There’s a discussion of how Locke and Rosseau — two non-American philosophers — viewed the role of children within society. There’s a recitation of Thomas Jefferson’s views of parenting. At one point Thomas favorably cites the view that not only parents, but government schools, should have “absolute” authority over children. He adds that in better days — you know, back when slavery was constitutional — “Stories written for children were dedicated to moral instruction and were relatively austere, lacking details that might titillate children’s minds.” Ultimately, an originalist view of the Constitution, according to Thomas, holds that a person under the age of 18 is the property of his parents — specifically the father.

Thomas sees no reason that we should depart from the social mores of ate 18th century America: “Although much has changed in this country since the Revolution, the notion that parents have authority over their children and that the law can support that authority persists today.” Of course, the law has changed over the centuries, and as Justice Scalia helpfully noted in his opinion, none of these changes provide even remote support for Thomas’s misogynistic, authoritarian gibberish:

JUSTICE THOMAS … denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none. Most of his dissent is devoted to the proposition that parents have traditionally had the power to control what their children hear and say. This is true enough. And it perhaps follows from this that the state has the power to enforce parental prohibitions—to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend. But it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent. The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent—even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors. And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents’ prior consent. Our point is not, as JUSTICE THOMAS believes, merely that such laws are “undesirable.” They are obviously an infringement upon the religious freedom of young people and those who wish to proselytize young people. Such laws do not enforce parental authority over children’s speech and religion; they impose governmental authority, subject only to a parental veto. In the absence of any precedent for state control, uninvited by the parents, over a child’s speech and religion (JUSTICE THOMAS cites none), and in the absence of any justification for such control that would satisfy strict scrutiny, those laws must be unconstitutional. This argument is not, as JUSTICE THOMAS asserts, “circular.” It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit, that renders them invalid.


Drigan June 27, 2011 at 2:04 pm

So, the only problem with his opinion that you voiced was that he shouldn’t try to stick to an old value system? This seems like a rather silly argument. At least if we keep the goal post in the same spot the words become less subjective. In this case, he was saying that the goal post was “what the founders intended.” Do you propose that every person be free to interpret the constitution as they see fit? I can sympathize with that thought if you are saying we shouldn’t be bound to laws in general; but I can’t sympathize with you saying that the law should be subjectively determined by each generation without rephrasing the law itself. This would cause unnecessary conflict as every person would be free to reinterpret the law to see if it had changed on a given occasion.

Honestly, the only problem with his theory for me is that he thinks the state has a right that ought to be reserved for the parents. It gets a little hairy when you try to apply it: At what age should children gain their rights from the parents? How is the breakdown handled between the rights of a child versus the rights of the parents according to the NAP? If a stranger gives my (3 year old) child candy, would you really say that as the parent I don’t have the right to forbid the child from eating it? But in spite of the difficulty applying it, I think there’s some truth in his opinion.

S.M. Oliva June 27, 2011 at 7:05 pm

Well, as Justice Scalia noted, the problem with Justice Thomas’s opinion is that it contained no actual law. He didn’t cite any cases or legal authorities. He merely recited a bunch of anecdotal evidence about how some folks — not even the framers of the Constitution — viewed the rights of children around the time of the Revolution.

And as for the example you cite — can a parent forbid a child from accepting candy from a stranger — again, I think Justice Scalia had this right. The question isn’t one of parental authority, which Scalia assumes existed, but whether the state has the right to impose an automatic preference that infringes on the rights of the child subject only to a parental veto.

jasontgordon June 28, 2011 at 1:11 pm

The question isn’t one of parental authority, which Scalia assumes existed, but whether the state has the right to impose an automatic preference that infringes on the rights of the child subject only to a parental veto.

I think the point Thomas was making is one of analytic [philosophically speaking] distinction; namely that a child is by definition without rights, being the property of the parents.

I have always, in some sense, intuited this to be true from the existence of an age of majority. The thing that would complete the legal picture would be strict liability/culpability for the parents due to acts of the child.

The real question for Justice Thomas is whether he favors the extension of this doctrine to the point of sanctioning the ancient threat of parents – “I brought you into this world, and BY GOD I’ll take you out of it!”

Gil June 28, 2011 at 12:34 am

A card-carrying Libertarian would state a there’s no ought to be no legal weight to being a “child” or an “adult”. In other everyone’s a person and has full human rights right and one person shouldn’t be deciding for another person, period. A child ought to be able to do whatever he or she wants (within reason). A child should be able to leave home and seek work because parents don’t own the child and the government shouldn’t make laws preventing people from working because of age. Historically children have indeed went to work as soon as they were able (about 5 to 7 years of age).

Drigan June 28, 2011 at 4:36 pm

I believe that’s incorrect. I think there can be a logical argument made for something along the lines of “caretaker’s privilege.” Perhaps “If a person cannot survive without assistance of another, that other person has the right to make decisions for the good of the first person”?

Surely someone has thought this one through a bit more than Gil and I have?

Drigan June 28, 2011 at 4:47 pm

Note: I do see the gaping problem of “the government will assume this privilege for itself.” But I can’t quickly think of a better wording that would exclude anyone that doesn’t immediately care for a person.

geoih June 28, 2011 at 6:02 am

Quote from Drigan: “Do you propose that every person be free to interpret the constitution as they see fit?”

Are you saying that doesn’t happen now? Everybody has their own interpretation of the Constitution. The difference comes in how far some people are willing to go in forcing their interpretation onto others.

Justice Thomas is free to surrender as much of his liberty to the state as he wishes. A problem only seems to arise when others don’t wish to make the same surrender and he feels compelled to force them to surrender.

J. Murray June 28, 2011 at 6:23 am

It’s hardly a silly argument when you consider that the old value system also required everyone to worship at the local church with legal penalties applied to those who didn’t and also thought it was a good idea to burn people as witches.

Cultural norms, like everything else, compete on the open market. Good practices remain intact and bad ones are eventually eliminated from the system. The length of time a norm is practiced has little bearing on whether it’s a good idea or not, and long-period traditions are more a sign of government intrusion than being a solid norm.

Also consider that people yearning for the “good old days” has little to do with those days being a good time to live and more with a much older individual recalling a day in his personal history when he didn’t have all the unpleasant effects of aging. It’s called cultural nostalgia where an older time is heavily romanticized. It’s currently popular to romanticize the 1950s, for instance, despite the major cultural violence that went on at the time (see the heyday of the KKK).

People think older practices are better in a combination of confusing good personal health with a strong, positive culture and general confusion from change. There will be a time when people look back to today as an example of the good old days when everything was perfect and wonder how society became so messed up, despite the world likely being a better place.

Drigan June 28, 2011 at 4:44 pm

We’re not talking about the entire old value system, just the portion of it that was ensconced into law, and the assumptions that directly affect that law. So I’m still going with “silly argument” on this one.

I hope you’re right that people will look to today as “the good ole days” and not “the destruction of the good times.”

Al June 27, 2011 at 2:50 pm

Drigan, Thomas did not justify the analogy between parental and governmental authorities nor did he support his implication that his notion of traditional parenting is superior (at what?) in a familial or governmental dynamic.

To some extent, every generation will interpret the law to their tastes by simple virtue of the fact that old people die and young people grow old. It is difficult to represent your position from the grave. That adherence to “traditional mores” provides a benchmark is not an argument supportive of adherence. Ignoring the debate over the value of picking a subjective set of beliefs as an objective reference, any set of mores will serve as a benchmark.

Marissa June 27, 2011 at 6:59 pm

What about “Congress shall make no law…” is so difficult to understand? Thomas’s whinging on about his disapproval of other parents’ choices is pathetic. His respect for government schools is even more so.

J. Murray June 28, 2011 at 5:49 am

The State of California isn’t Congress, so the 1st doesn’t apply on its own. However, in conjunction with the 14th, the States are bound to the first 8 entries in the Bill of Rights (now the consistent application of those 8 is in question, such as the 2nd). Prior to the 14th, States could ban speech all they wanted. Of course, it would ultimately chase people to other, less restrictive States (laboratories of Democracy), killing tax coffers.

Marissa June 28, 2011 at 2:15 pm

You’re right, J. Murray. I wasn’t even thinking about incorporation doctrine. After the preamble of the California Constitution is the declaration of rights: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”

Not quite as clear as the First Amendment, unless “responsible for the abuse” has no legal responsibility. Thanks for forcing me to clarify.

The CronoLink June 28, 2011 at 1:01 am


“‘Why is it wrong to ban selling violent games to minors?’ Aside from the reverence to Freedom of Speech that is widespread in America, the more important reason is that this actually has nothing to do with speech. Like most laws, it has everything to do with money. As long as I can remember, money grubbers have been trying to dip their hand into the large pool of money that video games create. Direct suing hasn’t worked. So another approach was launching legislation. California, which is a state whose financial situation resembles Greece, is desperate for money. This law was passed with the full expectation that no one would follow it. The fine was $1000 each time from retailers. This is free money for the state government.

Don’t get caught up in the ‘arguments’. This is nothing about children or violence or parents. This is everything to do with money. Money, money, money!”

Big Brother June 28, 2011 at 2:40 am

Shorely not!!

Felix June 28, 2011 at 9:44 am

Look, Thomas is what he is. He’s written more sole dissents and sole concurrences than any other Supreme Court Justice. He knows that his comments aren’t the one deciding the case. He’s simply stating some reasons as to why he believes what he does.

Frankly, I don’t mind his comments here. His position is understandably unsettling to some libertarians. But he’s not speaking to libertarians. He’s speaking to statist liberals, who believe that children are owned by the state. I don’t mind him making the argument that they’re not — that they’re “owned” by their parents. Maybe Gil (above) would say that I’m not a card-carrying libertarian, but if I had to put the “ownership” of children in someone’s hands, it would be in their parents’.

Now, the irony is that, while I believe that Thomas is indeed trying to make the case that children are owned by their parents, his argument here actually implies that children should be cut off from commerce, and looked after by the state. So I think he’s definitely confused. But that said, I don’t mind anyone ever standing up to statists, which I think he is doing.

Alpheus June 28, 2011 at 2:09 pm

I wouldn’t say that parents “own” children, so much as they have “custody” over them until they can come of age. I’d also go so far as to say that such custody should be freely transferable. You should even be free to sell that custody to another.

But custody over someone does not equate to being able to being able to use that person in slave labor of any type–nor is it a full-scale license to abuse or murder that person.

mikey June 28, 2011 at 12:18 pm

The ruling class in America wants to see large numbers of children grow up desensitized to violence
as they will make them better cannon fodder for endless war.

Marissa June 28, 2011 at 2:18 pm

Part of the ruling class wants to make these games illegal so your point is shaky at best. Look at correlation between violent video games and actual violence first.

mikey June 28, 2011 at 4:33 pm

I would but I cant tear myself away from my console

HL June 28, 2011 at 11:12 pm

Thomas loved his granddaddy. “Fathers ruled families with absolute authority” sounds like paradise.

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