Constitutionalism a la carte

I've written before that constitutionalists, originalists and so-called strict constructionists are trying to force the constitution into such a tight mold that it is functionally ineffective.  But that's not the only problem. These ideologues have a tendency to cherry pick.  Their judicial opinions often appear almost arbitrary in terms of application of an ideology.  Their arbitrariness allows them great discretion to the point where they can rewrite the constitution by choosing when to acknowledge the rights it grants the people and when to shut their eyes to those rights.

In yet another example of why originalists are full of beans - please see the Clarence Thomas dissent in  the June 27 decision on  Brown v Entertainment Merchants Association.

California wanted to ban the sale of very violent video games to young children.   The video game vendors sued.  The Supreme Court supported the vendors.  J. Scalia, who claims to be an originalist, does actually stick to literal text of the first amendment when writing for the majority.  They find the violent video games worthy of free speech protection - beyond the reach of parents seeking to protect their children (by penalizing merchants who would sell these games to minors).  Scalia notes the video games often are like stories, with characters, plots, themes and ideas.    Scalia writes: "Like the protected books, plays, and movies
that preceded them, video games communicate ideas—and
even social messages." California tries to find safe harbor for the law in obscenity restrictions. Historically obscenity is considered unprotected speech. But Scalia thinks only sexual matters should fall under the obscenity category. Violence in itself is not obscene.
All this is nice and good.


But it's too much for Clarence Thomas to stomach.

He thinks the justices should be more concerned with the rights of parents to protect their children from noxious influences than be attentive to the ideas inherent in the video games themselves. He concludes:
“The freedom of speech,” as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians.  He says this as if children were owned by their parents, as if children were property.   If we accept his conclusion, the First Amendment does not apply to children.  It sounds good, but it's dangerously arbitrary. This kind of thinking would set precedent for parents to restrict their children from exposure to other ideas. What if these video games were promoting revolution, or evolution? Thomas gives parents absolute, unfettered power to censor the information that reaches their children.  It's a power many parents crave -but is it fair to children? Is it constitutional? Thomas thinks so.  He supports his position with history books about parenting and writes: "Parents had total authority over what their children
read."  He notes the constitution prevents minors from voting or serving on juries. His examples are inapposite. Jury duty and voting involve making decisions about the Republic's future. Playing a video game is not making a decision about the nation's future - but sometimes playing a video game can expose a young mind to new ideas. One creative programmer designed a nifty game about terrorism. The player shoots and kills as many terrorists as he can - but every time he kills a terrorist, more terrorists spring out to replace the deceased. This free video game is violent - but it conveys an important idea - that killing terrorists simply breeds more terrorists and that violence is not an effective solution to terrorism.   Under Clarence Thomas' interpretation of the First Amendment - minors might not have the freedom to play a game like that, or be exposed to an idea like that.


Thomas professes to take the constitution literally - to refuse to read into it - but he butted heads with Scalia about whether free speech that depicts violence qualifies for protection.  Thomas said the founders always contemplated that parents could protect their children from harm and the ban on violent video games fell into that safe harbor. Personally, I agree with that assessment. But there is no way that can be considered "originalism."   The founders did not write any clauses with exceptions into the First Amendment, but somehow Thomas has found them.  These exceptions to free speech protection are not in the constitution, they are in Thomas' own conceptions of right and wrong, his personal conceptions based on society's values. This is exactly what he professes to oppose.

It's even more amusing that other members of the court's conservative wing use the same tack as Thomas - even though they concur with the majority.  They arrive at the same conclusion using a different strategy, they argue that California did not give constitutents proper notice and would strike down the ban on those grounds.  But part of their strategy involves looking at the matter through historical lens - not simply taking the text of the First Amendment literally.


J. Alito writes, "For better or worse, our society has long regarded many depictions of killing and maiming as suitable features of popular entertainment, including entertainment that is
widely available to minors."

The best critique I've seen comes from Garrett Epps in The Atlantic. (Link here)  Here's an excerpt from the article:


"In nine cases out of ten, "originalists" are the ones employing free-form interpretive techniques, applying them to carefully selected historical materials rather than to the text and structure of the Constitution. The result is a claim that ancestral voices have told them how to resolve present legal disputes.  Justice Thomas's dissent should stand, for a while, as the most egregious example of this voices-in-my-head originalism."

What Epps is too nice to say (but I'm not) is that originalists are usually arbitrary and often render arbitrary opinions. The only thread of consistency is that their opinions are consistent with their personal values, quirks and personalities.