Posted on 06/30/2011 4:39:19 PM PDT by TheDingoAteMyBaby
Those who paint U.S. Supreme Court justices with a broad brush only prove they don't really understand the court. Justice Antonin Scalia was dead wrong in striking down California's restriction on selling horribly violent video games to children. And Justice Clarence Thomas did a spectacular job of showing why the Founders would uphold this law.
California enacted a law restricting the sale of graphically violent video games to children, requiring an adult to make the purchase. One such graphic game involves the player torturing a girl as she pleads for mercy, urinating on her, dousing her with gasoline and setting her on fire.
Video game merchants challenged the law for violating the First Amendment. By a single vote, the court agreed. That majority was Scalia, joined by moderate Anthony Kennedy and three liberal justices (Ruth Bader Ginsburg and President Obama's two appointees, Sonia Sotomayor and Elena Kagan).
The court upheld the law 7 to 2, but not on speech grounds. Scalia wrote for five justices that there are four types of speech outside First Amendment protection: obscenity, child porn, incitement and "fighting words."
Holding that obscenity only covers sexual material, the court struck down this law for not satisfying the "strict scrutiny" required of content-based speech restrictions.
Justice Samuel Alito, joined by Chief Justice John Roberts, voted that the law was void for vagueness -- so poorly written that people could not tell where the line was drawn, which would require the statute to be rewritten.
While not reaching the free-speech issue, he strongly suggested Scalia was wrong.
The first dissent was by Justice Stephen Breyer. He quoted from a 1944 case, where the court recognized that the "power of the state to control the conduct of children reaches beyond the scope of its authority over adults."
Although agreeing with the majority that strict scrutiny applies here, Breyer added in his typical fashion that this modest restriction on speech is OK because its benefits outweigh the costs to liberty.
The only originalist opinion came from Thomas, who filed an outstanding dissent that cogently set forth why this law would be acceptable in 1791 when the First Amendment was adopted.
Referencing Scalia's four types of unprotected speech, Thomas explains, "the practices and beliefs held by the Founders reveal another category ...: speech to minor children bypassing their parents. ... Parents had absolute authority over their minor children and ... parents used that authority to direct the proper development of their children."
Thomas continued that parents in 1791 had a duty to restrict influences on their children, because children were recognized to have their own moral failings, and parents were to rigorously instill good values in them and secure wholesome influences on their development.
For that reason, parents took charge of their children's education and monitored what they read and who they spend time with. Even in their late teens, children could not marry or join the military without parental consent, or vote, serve on juries, or be witnesses in court.
Thomas showed how the Founders believed limited government could only endure if parents faithfully raised children to become virtuous and productive adults. Parents had a "sacred trust" to shield children from corrupting influences and to safeguard their development into responsible citizens.
Clarence Thomas' dissent speaks to countless cultural issues we face today. It should be recommended reading for anyone trying to understand the Framers' meaning in the First Amendment where children are concerned.
This case presents as stark a contrast as you'll ever see showing how conservatives can split on the meaning of the Constitution. And it's a critical reminder that the court hangs in the balance in the 2012 election.
Examiner legal contributor Ken Klukowski is a fellow with the Family Research Council and co-author of "Resurgent: How Constitutional Conservatism Can Save America."
You cannot support the Constitution without implicitly making a "pro-government" argument. If you expect me to quit doing that you're going to be disappointed.
The Warren Court was known as our great libertarian court, they used ‘individual rights’ to start dismantling the nation and our culture.
Earl Warren’s was a Libertarian hero with his sweeping new view of the constitution and finding individual rights all the time and eliminating 170 years of American community and culture, with libertarianism the government decides everything, the people can only await it’s rulings.
The Warren Court was the real hippie movement of the 60s.
“From 1953 to 1969, Earl Warren presided as chief justice of the U.S. Supreme Court. Under Warren’s leadership, the Court actively used judicial review to strictly scrutinize and overturn state and federal statutes, to apply many provisions of the Bill of Rights to the states, and to provide opportunities for those groups in society that had been excluded from the political process. During Warren’s tenure, the Court became increasingly liberal and activist, drawing the fire of political and judicial conservatives who believed that the Warren Court had overstepped its constitutional role and had become a legislative body. The Warren Court itself became a catalyst for change, initiating reforms rather than responding to pressures applied by other branches of government.
The Warren Court was committed to the promotion of a libertarian and egalitarian society. The Court used the strict scrutiny test of constitutional review to strike down legislation that directly abridged the exercise of fundamental rights or narrowed the number of people who might exercise them, and to invalidate legislation that discriminated on the basis of race, religion, and other suspect classifications. Under strict scrutiny, the government has the burden of proving that a compelling state interest exists for the legislation and that the law was narrowly tailored to minimize the restriction on the fundamental right. This burden proved difficult to meet during the Warren Court years, turning the federal courts into institutions that protected the interests of politically unpopular individuals and members of relatively powerless minority groups who had been victimized by pervasive historical, political, economic, and social discrimination.”
Obviously you did not. Read it again. Explain how for a couple thousand years civilization survived without govt to regulate alcohol purchase and consumption....Oh yea...Parenting.
Any store owner can refuse the right to serve a child - Or an adult.. If the ‘community’ does not want kids drinking, it does not require a law. Just involved parents and businesses working together.
Simple huh?
Noy your turn to fess up. Do you believe that soldiers should be denied a beer ? Yes or no .
>>Maybe the point is that these children don’t have a MOM and DAD. Or at least ones who CARE what their children are doing. <<
You mean like a Big Brother?
/s
Your post demonstrates the differences between a strict constructionalist (Scalia) and an originalst (Thomas). They might agree 95% of the time, but the other 5% could get personal.
>>Government regulation of business is now a desired thing on a conservative website?
>
>Of course, you think that social conservatives think that by calling it a business that you have free unfettered access to our children?
And whose responsibility is it to look after the child?
The state? The businessman? Or, perhaps, the Parent?
{It is also complete BS to say that the business has unfettered access to children, because it is the parent that is supposed to fetter the child!}
Show me alcohol/video game lawn in the constitution.
MINIMAL GOVERNMENT not ANARCHY!
I believe that soldiers should conduct themselves in accordance with the "community standards" of whereever they are. My son is a nuke serving on one of our fast attack subs, and I expect no less from him.
That is just a silly post, it sounds like you live in a vacuum.
>>So either jack the enlistment age to 21 or 17 and up is just fine with me for a beer.
>
>OK, how are you with a couple of 13 year-olds walking out of a liquor store with a fifth of Everclear?
AMENDMENT XVIII
Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.
Section 1.
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2.
The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Passed by Congress February 20, 1933. Ratified December 5, 1933.
Section 1.
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2.
The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Looks to me like it’s not the federal government’s business at all; Sec 1 of Amendment 21 repealed ALL of Amendment 18.
Exactly. My 21 year old that made Sgt at 21 in the USAF , did a tour in Iraq and sings the National Anthem at all the base functions, has an Associates in Biz, was raised on Freddy Kruger and Final Fantasy.
Oh and she is now a married mom with 2 adopted children.
Yea, them evil video games make for crazed killers.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
No, it was the great liberal court, and Warren relied heavily on the remaining New Deal progressive justices appointed by FDR to cement in place his majority. Warren was a liberal, not a libertarian.
Exactly, since the 60s the Supreme Court and the feds have destroyed our communities, and here you are cheering their latest victory over communities.
Congress of the United States begun and held at the City of New York, on Wednesday the fourth of March, one thousand seven hundred and eighty-nine.Those first few words of the First Amendment must have some meaning, those men who wrote our Constitution were extremely careful, they left no superfluous phrases hanging about. Thus when we read "Congress shall no law", that applies only to the first and leaves the others to apply to all entities of government Federal or State.The Conventions of a number of the States, having at the time of their adopting the Constitution expressed a desire in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government will best ensure the beneficent ends of its institution.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, two thirds of both Houses concurring that the following Articles be proposed to the Legislatures of the several states as Amendments to the Constitution of the United States, all or any of which articles, when ratified by three fourths of the said Legislatures to be valid to all intents and purposes as part of the said Constitution. viz.
Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress and Ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution."
Those were the minimum safeguards to liberty of the citizens that each state must supply to be part of the United States.
What is silly about stating that it is the parent’s responsibility to parent?
{As opposed to the government, or the businessman?}
Sorry, but Earl Warren was a famous libertarian, that is why he used the mantra of “individual rights” to end local control and federalize everything.
Just like in the schools, it was libertarianism that destroyed the ability to control the students and run clean, orderly schools, because everything was a right, just as this ruling.
By the way libertarianism is liberalism with conservative economics, and even that wasn’t there at first.
You OK if the state decides to remove guns from your neighborhood because it feels you live too close to a school? after all, the state said so right?
As for your non-answer to the soldier beer thing, I take that as a no.
Warren was a liberal Republican; a three-time governor of California who was so liberal he even won the nomination for governor from the progressive AND democrat party when he ran in 1946. You really need to do some research, man.
Gotta go. Will check back later. Don’t worry Tac, I’m not running away ;)
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