Thursday, June 30, 2011

The First Amendment vs. Clarence Thomas

As you know, Thomas filed a dissent on the video-game case before SCOTUS. The Court ruled that the vid-game ban in California violated the First Amendment.

Thomas disagreed, and for far better reasons than the legalistic voodoo of the majority.

...“The practices and beliefs of the founding generation,” he wrote, and then demonstrated at great length, “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.” This is consistent with his assertions in several cases beginning with Troxel v. Granville in 2000 that “parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them.”

Apart from the details of the video-game case, which may or may not involve threats to that fundamental right, it should be inarguable that such a right does adhere to parents (or legal guardians), and that protection of that right is essential to this nation’s ordered liberty. This is key: Rights apply not directly to children, but to them only through their parents. A law which prohibits parental authority (except in cases of abuse) violates this understanding (which predates and underlies the Constitution); while a law that aids parents in asserting such authority, without imposing the state’s own judgment, ordinarily is consonant with the Constitution.

As Thomas noted in his dissent in Brown, all the way back to and even before the founding, “the law imposed age limits on all manner of activities that required judgment and reason.” It still does so today, so that courts have upheld even such dubious strictures as a drinking age (21) that is above the otherwise legal age of majority (18)....

The kind of dissent which is fun to read because it's not overlaid with foodaddle about 'scrutiny.'

HT: AmSpecBlog

2 comments:

John Foust said...

By "scrutiny" you mean his financial reporting forms, right?

Anonymous said...

Thomas is the poster boy for conflicts of interest. The Senate ought to scrutinize him a little more closely.