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."
I understand, however is not government passing obviously flawed legislation, or legislation at all that removes parental control and gives to the govt at any level not a power grab as well?
That’s where the whole Govern best that governs least comes in. Look at the link I posted above for USA 1910 drinking age.
Until the prohibition fiasco, there was no law. PARENTS had the responsibility as did the bar owners.
I don’t think we totally disagree here in the broad sense. But the details divide us.
That was a lousy, inaccurate source (and it always is), we know there were drinking laws pre prohibition.
See post 180 and post 172.
No it does not. Do some research for yourself. My grandfather told me hundreds of stories of his teen years in NY bars. That was around that era.
Think he and his friends were the only teenagers in the country able to get served in a bar? Come on....
Then find one you like better.
How did that law remove parental control?
Have you been reading the thread at all or do you just troll for attention?
Good gosh man what era, what year of their teens, was it legal, or them passing themselves off as older, get focused.
I had a liquor store credit account when I was 4 years under age, and I was hitting the bars, but it wasn’t legal
If anyone is trolling it is you, how does that law remove parental control, the parents are still in control of their children, and they can still purchase the game for them, or not.
LOL, you made the claims about knowing 2000 years of liquor laws, prove it.
Wow, really really wrong. In the great majority of states, it was 21, and 20 in a couple, and more than a few mixed, as 21 for men/18 for women, or 18 for beer/21 for booze.
tacticalogic: “I’ve already tried to explain to you that I don’t agree with this law, but whether I agree with it or not is irrelevant to the question of whether the state of California has the authority to pass it, based on a strict reading and honest attempt to determine the original intent of the Constitution.”
It’s pretty clear to me, but I just don’t think you’re getting through. Although I might enjoy squashing liberal states with an activist, conservative court (if we ever get one), I would oppose it as much as I oppose an activist, liberal court. If we are going to be free, we have to respect the right of other people to pass laws we don’t like so long as those laws don’t specifically violate the US Constitution.
This decision further feeds the increased movement towards children as equal decision makers and deprecation of parents, marginalizing them as little more than an ATM. This dovetails with what we've seen in abortion vs. parental notification too or banning meals from home at public schools.
It's now been established commercial entities cannot be prevented by law from having a direct relationship with your child whether you know it or not.
Early 1900s. Upstate NY. Lumberjack country.
I got into a discussion where some dude like you tried saying people in that era didn’t marry in theit teen and have kids either. Freepers came out of the woodwork with examples proving me right. Wanna go down that route?
16-17 is a child today according to modern America right? Even 18? Good old western civilization? No civilized country would allow such a child to consume alcohol today right?
United Kingdom (age 5 with parents)
16
Antigua
Barbados
Belgium
Georgia
Germany
Greece*
Luxembourg
Malta
Norway*
Poland
Portugal
Spain (16 in Asturias)
17
Cyprus
18
Algeria
Argentina
Australia
Belarus
British Virgin Islands
Bulgaria
Canada (19 in some provinces)
Croatia
Czech Republic
Denmark
Finland
France
Hungary
Ireland
Israel
Latvia
Lithuania
Moldova
New Zealand
Norway*
Russia
Samoa
Seychelles
Slovak Republic
Spain (16 in Asturias)
St. Maarten
Sweden*
Ukrane
You should read it more carefully the line in question in in the 2nd paragraph describing the reason behind the amendments:
“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”
If theses were as you contend mandatory upon the states to join the union then many if not most of the original 13 states would not be in complaint to this day.
Yes that is right to this day Not all of the “Bill of rights” have been “incorporated” against our States.
When the Federal employees in black robes issued their decree that The people are hence forth forbidden from ceding said power to their State Government using the irresponsible wording of the 14th amendment as an excuse.
They created what is really a source of limitless arbitrary power for themselves. To this day despite the vague ideas of some of them that it should be limited only to the first 8, they have still not even incorporated all 8 of them.
They have furthermore in choosing to ignore aspects of some not yet incorporated against the States, they have also choose to ignore those same prohibitions against the Federal Government. See the Original post in this thread listing Federal excused for limiting free speech.
What we have here is an entirely arbitrary and completely jumbled mess of dictatorial edicts from the Federal Employees in black robes.
Even if the first 20th century injustices invented the Incorporation doctrine out of good intentions, any power grab into the limitless domain is ultimately evil.
It is unfortunate that among the evils to result from this power play is the murder of 40 million Americans.
Norm Lenhart: “I understand, however is not government passing obviously flawed legislation, or legislation at all that removes parental control and gives to the govt at any level not a power grab as well?”
You’re right. All government is a power grab, but citizens give power to governments for reasons, like safety and security. In this case, a majority (that’s important) decided violent video games were harming (a safety issue) their children. A majority of them banned together and passed a law. That law might have been poorly written, but that’s not why Justice Scalia and most of the liberal justices tossed it out. They simply decided minors have a constitutional right to buy violent video game.
That’s the crux of the issue. Who gets to decide what’s harmful or obscene, the people of a given state or the Supreme Court? Now it no longer matters what you or I think because the SCOTUS has substituted its judgement for our own. It no longer matters if 90% of the voters in a given state think violent video games are harming their children. You might be part of the 10% who disagree, but that doesn’t mean it’s OK for to use the SCOTUS as a bludgeon against the right of the 90% to govern their community.
Tell me about the little children not 17 year olds in foreign countries and not with parents, my understanding is that the feds changed the law to all ages, no parents needed.
By the way, if you want to get into the average age for marriage and first child in early America, I can handle that road pretty easily, we had to deal with the Mormons on that one.
http://www2.potsdam.edu/hansondj/YouthIssues/1046348192.html
Researchers have pointed out that minimum drinking age laws in the U.S. are a post-Prohibition phenomenon. Prior to the repeal of the Eighteenth amendment (Prohibition), state laws prohibiting minors from possession or use of alcohol were unusual. Adolescent alcohol consumption was regulated by the informal controls of family, community, peers, and self-restraint. The only drinking controls that have enjoyed any success over the centuries are social and cultural constraints.
Gene Ford is the founder and publisher, emeritus, of Healthy Drinking magazine and the author of five books about drinking, including The French Paradox and Drinking For Health, which is an extensively documented analysis of drinking in terms of health and control issues. He is currently completing another book on the health benefits of moderate consumption of alcohol beverages.
Again, that was not a source, that activist was merely writing, not proving anything.
Not just Mormons on marriage. Christians and everyone else in the country.
Alcohol: You will notice I referenced 16-17. Not little kids. Never the less see the total lack of pre prohibition drinking age laws in my other post. And the UK to this day with Parents.
You lost. I’m sorry. Deal with it. History backs me up.
No it was another you don’t like. Too bad.
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