Over at the Atlantic, Garrett Epps takes a closer look at Justice Clarence Thomas’ dissent in this week’s landmark violent videogame case ruling can tell us about “originalism,” or at least the limits of it. That point of view attempts to discover the original reading of the Constitution. The whole piece is worth a read:
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 afterthe 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.