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."
Not seeing a consistent standard in there for opposing the nanny state on circumcision and happy meal toys - but supporting it for video games.
I know it is hard to defend an emotion based system with logic and a consistent standard - but zero points for not even making the attempt.
Like a child, you want to pick at nits and get into your chosen minutia, and ignore the reality of 60 years of history, and the destruction of what was once our great nation.
Remove the court’s boot from traditional America’s neck and the left will be stopped, and reversed.
It is hardly minutia to have a consistent and logical standard by which the “nanny State” is to be judged.
You apparently don’t have one, and don’t think you need one.
You seem to support nanny State laws or not support them based upon whose “ox” is being “gored” rather than having a consistent and logical standard.
Would you characterize a Court ruling that a circumcision ban in San Francisco was Unconstitutional as “the court’s boot (on) traditional America’s neck”?
You must be a strong supporter of the gains that homosexuals have made since the 1960s.
If I oppose your nannyStatism I simply must be one of “you guys” who keeps ‘pushing liberal policies’ - a libertarian - etc, etc.
All your childish accusations don't substitute for having a logical and consistent standard.
Throwing a tantrum doesn't help your case - because you are not making a case - other than the idiot dodge that anybody who disagrees must be ‘one of THEM!’.
Try laying out a consistent and logical standard and maybe you will gain some respect. Doubtful - but you obviously have no respect to lose.
You do support the libertarian gains of homosexual’s civil rights since the 1960s, you have to, that is the argument that you are making.
As such I oppose most of the nannyState laws you seem to favor, other than the nannyState laws you oppose - not at all based upon an objective and logical standard - but all based upon ‘us’ and ‘them’.
That is obviously your illogical basis and standard - and rather than argue against the consistent and logical standard I support - you simply have to characterize me in your thinking and posts as ‘one of them’.
Rather idiotic and infantile and completely illogical.
What makes you think I didn't look?
You're just wrong, man. I told you why you were wrong. If you want to persist in your wrongness, go ahead . . . it's your prerogative. But it doesn't make you right.
Just remember, though, when you claim to be a conservative, then you go around spouting moronic things like "Earl Warren was a libertarian," you weaken the cause.
Good intent? How is that? Power, operating as a confounding ever-demon of human mores, speaks so. This new power is needed it tells a man! Which man? The man who then takes that power from the others to whom in rightfully belongs.
The Bill of Rights was meant to protect citizens in the newly reformed nations from ALL levels of government.
You never answered if you had read the libertarian party platform.
As far as Warren, it isn’t me saying that, it is Earl Warren’s title in law history, one of the courts greatest libertarians, the man that advanced civil liberties farther than any other Chief Justice.
You continually saying that isn’t true because you don’t like him being a hero of your movement, cannot change American history and the last 65 years of his well earned title.
The libertarian party platform tells us who you guys are.
I’ll take that as a yes, you do support the libertarian gains by the homosexual agenda and their, forced by the courts, against community standards, penetration into our culture.
Just because I give you a lot of poop doesn't mean I won't ping you to a thread where you might enjoy the opinion.
You libertarian fascist hippy nazi.
1. Not very bright.
2. Unable to make a cogent argument.
3. Motivated by some great fear and loathing of libertarians and libertarianism.
4. Ignorant of history.
Are you a liberal plant who posts on FR to try and make all conservatives look like dopes?
For myself I have a consistent standard based upon wanting a Constitutional government of limited and enumerated powers.
You seem to think that morality doesn't exist unless the State passes a law to enforce it.
That is an idiotic view.
Law enforced compliance with the law. Morality is enforced upon the self by the self.
Thanks old man. For awhile I thought you might ban me from your ping list.
Mr. Scalia I will be simple.
First objection: The doctrine of Stare Decisis is an amoral doctrine at best and often in these times: immoral. Why? Because no ethics or moral philosophy informs it. It is vacuous.
When men and the culture operate morally it seems an efficient and pleasant method of crafting rulings. But as it becomes used more and more Judges lose sight of the markers, the bounds and metes, that are foundational.
Long chains of prior decisions each one a step further and further away from ideal brings the application of judicial logic to direct opposite of those ideals. Not in all cases, but as men are confused and prone to hubris, greed, and all sorts of motive, it is the nature of the evil influence in the world to shave away at good ideals more often than reinforcing them. So the majority of law, as practiced by Judges in mighty trains of logic based on prior decisions becomes corrupted. The ideals are forgotten, buried, and then the very opposite of those ideals becomes the law as Judges declare it.
Second objection:
No law or ruling upon a case to which the law might apply should ever be absent application of those laws which our Creator established for men, between men and over all the rest of this magnificent creation. The Founders knew that, the Declaration declares that as paramount and explicit:
You can make vague, sweeping inaccurate attacks, but I can point out that you actually do support the homosexual agenda, that proves what I have been saying all along about the effect that your team has had on America in the last 60 years.
I take it you support the libertarian party platform, I guess that is a given.
I am not a libertarian - I am a conservative Constitutionalist.
You are not a conservative - just a reactionary.
Conservatives believe in limited government. Reactionaries believe in “us” versus “them”.
Thus the entire thrust of your “argument” is that I simply must be “one of them”.
+1
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