This week the Supreme Court handed down a decision that struck California’s ban on the distribution of violent video games to minors, in part because the majority found that children have a constitutionally protected right to free expression. Justice Clarence Thomas, one of two dissenters, filed an opinion rooted in his originalist interpretation of the meaning of the First Amendment. By his reasoning, the First Amendment cannot today extend rights to children because the public would not have understood it to do so at the time of ratification.
In support of his interpretation, Thomas cited authorities on Puritanical society (“Part of the father’s absolute power was the right and duty ‘to fill his children’s minds with knowledge;’” E. Morgan, The Puritan Family 97 (rev. ed. 1966)); John Locke (who “taught that children’s minds were blank slates and that parents therefore had to be careful and deliberate about what their children were told and observed”); John Adams (“They ‘have not Judgment or Will of their own’”), Noah Webster (“‘The most useful citizens have been formed from those youth who have never known or felt their own wills till they were one and twenty years of age’”), and Thomas Jefferson (who “expected his daughter, Martha, to write ‘by every post’ and instructed her, ‘Inform me what books you read and what tunes you learn’”), among many others.
From what I know about Clarence Thomas’s philosophy and demeanor, I must of course assume that his dissenting opinion was not intended to be read satirically, ironically, or in any way other than a sincere expression of his deeply held belief in originalist values. But when I read the opinion, I could only see the inherent absurdity of this approach. If the author had been a recognized critic of originalism–instead of one of its most ardent proponents–would the work stand as a piece of satire?
When we consider the Constitution’s meaning at the time it was drafted, we must ask, “Whose meaning?” Noah Webster seemed to be speaking for families with the resources that would allow children to remain children until they turned twenty-one; in Eighteenth Century America these were the elites. A significant number of Americans could not read or afford the luxury of a book, so it seems a little silly to assign to them the values of John Locke or Jean-Jacques Rousseau. Modern day originalists seem to have the advantage of being able to pick and choose the meaning and the meaning-makers that support their conclusions.
Thomas’s early American citizen was a realist who formed his beliefs from the evidence provided by the most learned men at the time. John Adams declared that children have no will or judgment, and we can assume that he was both listening and contributing to the generally held consensus of opinion of his time. The problem here is that evidence evolves and changes. Certainly the briefing materials in Brown attest to the fact that today we have access to a sea of data related to the intricacy and malleability of the young mind. But Thomas would not only have us conform to the values of the Founders, but he would also limit us to the facts they referenced in forming those values.
Maybe the greatest difficulty that I had taking Thomas’s approach seriously arose out of his reliance on Thomas Jefferson, a man who fathered children with mothers he considered to be his property. Were his beliefs on parenting confined to just his white children? Just his marital children? These questions matter because if we are to be bound by Jefferson’s parenting values, we must examine the worthiness of those values in their entirety. Thomas Jefferson was human, and therefore, a complicated, sometimes conflicted, moral entity. And his values did not live in silos, distinct, whole, and isolated from his other values. Abolition may allow us to ignore Jefferson’s belief in the constitutionality of slavery, but Thomas would insist that we are still required to defer to his feelings about his children, even though we know that Jefferson believed some of his children were property to be sold and exploited. I am not trying to make the facile argument that because Jefferson was a slave owner, he is disqualified from informing our Twenty-first Century interpretations. I am saying that if you propose that un-amended constitutional provisions must be strictly limited to the values of people who applied those values to other people they claimed to own, I am going to have a hard time taking your argument seriously.
When I read history, I see a selected, edited set of data points that offer hints and suggestions of the lives of people who are now dead. And now that I have been reading history for a while, I am fascinated by the way those stories change as we find more data, learn more about the past, and revise what we think we know about ourselves. So I am troubled when a powerful faction in one of our nation’s most powerful institutions tries to elevate their fetishized belief in a paternalistic, class-structured early American society to an inflexible interpretive lodestone for today’s America. I can only hope that the reasoning of Thomas’s dissent will help demonstrate the danger of this approach.