The Supreme Court recently struck down a California law that forbid the sale or rental of violent video games to children. The lineup was rather unusual. Justice Scalia wrote the majority opinion, joined by Kennedy, Ginsburg, Sotomayor and Kagan. Justice Alito wrote a concurring opinion, joined by Roberts. Justice Thomas and Justice Breyer filed separate dissenting opinions. So it was a 7-2 ruling with a mix of conservatives and liberals on both sides.
Several people have noted that Thomas’ dissent is rather odd. One attorney blogger called it “the strangest Supreme Court opinion I ever read.” Another writes that it contains “some of the craziest stuff ever to appear in a SCOTUS opinion.” But neither of them noted the very first paragraph of Thomas’ dissent, which jumped out at me:
The Court’s decision today does not comport with the original public understanding of the First Amendment. The majority strikes down, as facially unconstitutional, a state law that prohibits the direct sale or rental of certain video games to minors because the law “abridg[es] the freedom of speech.” U. S. Const., Amdt. 1. But I do not think the First Amendment stretches that far. 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.
But this is a complete non-sequitur. Even if he was right in his assertion, what does this law have to do with speaking to minors without going through the parents? Even if it was entirely legal to sell violent video games to parents, the parents still have the authority to forbid their kids from buying, renting or playing such video games. This law does not enhance parental authority over their kids, it undermines such authority by eliminating the parents’ right to decide whether their kids should be allowed to use such games.
But from there, the ruling really does turn bizarre. After arguing that the key to interpretation is to find the original public understanding of the First Amendment, he then argues that the key to understanding the original public understanding of that provision one has to look to Puritan Massachusetts in the 1600s and 1700s, before the constitution even existed. Seriously.
Attitudes toward children were in a state of transition around the time that the States ratified the Bill of Rights. A complete understanding of the founding generation’s views on children and the parent-child relationship must therefore begin roughly a century earlier, in colonial New England.
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) (herein-after 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 & Kellogg); 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).
Okay, that’s bad enough — and again, laws that forbid parents from allowing their kids to read certain kinds of books are the exact opposite of Thomas’ claim that the founders wanted to “support parental authority by restricting speech that bypasses minors’ parents.” He even cites parents urging restrictions on their own children as evidence that the government should do so for them:
This conception of parental rights and duties was exemplified by Thomas Jefferson’s approach to raising children. He wrote letters to his daughters constantly and often gave specific instructions about what the children should do. See, e.g., Letter to Martha Jefferson (Nov. 28, 1783), in S. Randolph, The Domestic Life of Thomas Jefferson 44 (1939) (dictating her daily schedule of music, dancing, drawing, and studying); Letter to Martha Jefferson (Dec. 22, 1783), in id., at 45-46 (“I do not wish you to be gaily clothed at this time of life … . [A]bove all things and at all times let your clothes be neat, whole, and properly put on”). Jefferson expected his daughter, Martha, to write “by every post” and instructed her, “Inform me what books you read [and] what tunes you learn.” Letter (Nov. 28, 1783), in id., at 44. He took the same approach with his nephew, Peter Carr, after Carr’s father died. See Letter (Aug. 19, 1785), in 8 The Papers of Thomas Jefferson 405-408 (J. Boyd ed. 1953) (detailing a course of reading and exercise, and asking for monthly progress reports describing “in what manner you employ every hour in the day”); see also 3 Dictionary of Virginia Biography 29 (2006).
Jefferson’s rigorous management of his charges was not uncommon. “[M]uch evidence indicates that mothers and fathers both believed in giving their children a strict upbringing, enforcing obedience to their commands and stressing continued subjection to the parental will.” Norton 96. Two parenting books published in the 1830’s gave prototypical advice. In The Mother’s Book, Lydia Child advised that “[t]he first and most important step in management is, that whatever a mother says, always must be done.” Child 26. John Abbott, the author of The Mother at Home, likewise advised that “[o]bedience is absolutely essential to proper family government.” Abbott 18. Echoing Locke, Abbott warned that parents who indulged a child’s “foolish and unreasonable wishes” would doom that child to be indulgent in adulthood. Id., at 16.
Okay, so Jefferson thought parents should make their kids dress well. How does it follow that therefore the government should pass a law requiring all children to dress well? This doesn’t support parental authority, it destroys it.
But it gets simply bizarre when Thomas starts citing other Puritan laws, like the fact that children had committed a “capital offense” if they disobeyed their parents. And then there’s this:
The law entitled parents to “the custody of their [children],” “the value of th[e] [children's] labor and services,” and the “right to the exercise of such discipline as may be requisite for the discharge of their sacred trust.” Id., at *193, *203. Children, in turn, were charged with “obedience and assistance during their own minority, and gratitude and reverance during the rest of their lives.” Id., at *207.
Thus, in case after case, courts made clear that parents had a right to the child’s labor and services until the child reached majority. In 1810, the Supreme Judicial Court of Massachusetts explained, “There is no question but that a father, who is entitled to the services of his minor son, and for whom he is obliged to provide, may, at the common law, assign those services to others, for a consideration to enure to himself.” Day v. Everett, 7 Mass. 145, 147; see also Benson v. Remington, 2 Mass. 113, 115 (1806) (opinion of Parsons, C. J.) (“The law is very well settled, that parents are under obligations to support their children, and that they are entitled to their earnings”). Similarly, the Supreme Court of Judicature of New Hampshire noted that the right of parents to recover for the services of their child, while a minor, “cannot be contested.” Gale v. Parrot, 1 N. H. 28, 29 (1817). And parents could bring tort suits against those who knowingly enticed a minor away from them. See, e.g., Kirkpatrick v. Lockhart, 2 Brev. 276 (S. C. Constitutional Ct. 1809); Jones v. Tevis, 4 Litt. 25 (Ky. App. 1823).
Relatedly, boys could not enlist in the military without parental consent. Many of those who did so during the Revolutionary War found, afterwards, that their fathers were entitled to their military wages.
So he not only wants us to define the limits of the First Amendment by reference to the theocratic Puritan colony in Massachusetts, he also thinks parents have the right to force their kids to work and pocket the earnings for themselves. Holy cow.