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09/13/2011

Originalism in the Blogs
Michael Ramsey

David Post: Sex, Lies and Videogames.

Post criticizes Justice Thomas' dissent in the violent videogames case on originalist grounds with which I entirely agree (see here).  But he then turns that criticism into a broader indictment of originalism that seems unjustified:

[Justice Thomas] relies, inter alia, on Wadsworth’s “The Well-Ordered Family” of 1712, Cotton Mather’s “A Family Well-Ordered” (1699), “The History of Genesis” (1708), Locke’s “Some Thoughts Concerning Education” (1692), Burgh’s “Thoughts on Education” (1749), along with a number of more recent scholarly studies focused on child-rearing practices during the Founding period.

That is originalism on steroids, and, to my eye, rather poignantly illustrates the weakness of the approach. I understand, and am sympathetic to, the notion that the meaning of a constitutional provision should be informed by the meaning given to it by those who drafted and ratified it. But can that really mean that we will look to the child-rearing principles of Cotton Mather and John Locke to define, for all time, the scope of the constitutional protection for free speech? Even assuming that Justice Thomas (or anyone else) can reconstruct the sociology of the eighteenth century to definitively support the notion that parents possessed “absolute authority” over their children, and that “total parental control over children’s lives” was the governing societal norm—what then? The question in this case is not “do parents have absolute authority over their children?” The question in the case is, rather, “how does what the state did here relate to (a) the authority of parents over their children, (b) the power of the state to protect the well-being of children, and (c) the constitutional protection for ‘the freedom of speech’?” That’s a hard question in 2011, and it would have been a hard question in 1791, because it involves categorization: Is this, actually, a case about the authority of parents over their children? Or is it a case about the extent of the state’s power to protect minors? The scope of the First Amendment rights of video game manufacturers? Or the scope of the First Amendment rights of minors? Nothing in Justice Thomas’s historical research tells me, or can possibly tell me, how people in the eighteenth century would have answered those questions.

Originalism as a theory isn't undermined because Justice Thomas wrote one unpersuasive opinion.  Any judicial philosophy can be misapplied.  Beyond that, it seems to me (contra Post) that Thomas' opinion illustrates a strength of originalism, not a weakness.   We can criticize Thomas' opinion on methodological grounds and endeavor to prove it wrong on its own terms without it becoming a matter of contested and irresolvable disputes of policy or morality.  That's because originalism has (or should have) its rules.  Thomas, I would say, did not follow them in the videogames case because he didn't keep focused on a historical interpretation of the text and (as Post says) he drew upon an array of marginally relevant sources that had little to do with the questions the case posed for original meaning.  Thus we can say that he got it wrong not because we disagree with the result (I'm not sure I do) but because he did not apply a satsifactory version of his own interpretive approach.  This attribute makes originalism more a rule of law than other approaches that depend more heavily on morality and policy.