Justice Thomas, Parental Paternalism, and Originalism at the Wrong Time

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11 Responses

  1. Brett Bellmore says:

    “When there is any doubt, Thomas will side with the parents (and therefore the state).”

    Doesn’t this formulation presume that parents and the state never will come into conflict? Scarcely strikes me as the sort of assumption Thomas would make.

  2. Josh Blackman says:

    Yes, you are right. This conclusion is a bit broad. In fact, I can think of a case like Troxel were Thomas sided with the parent’s interests, over the state (and in which he favorably cited Myers v. Nebraska). Where the parents and the state are the same side, this statement may be more apt.

  3. Josh Blackman says:

    Make that Pierce v. Society of Sisters, not Myers.

  4. C says:

    Wouldn’t an originalist see no substantive difference between applying the First Amendment directly and applying the First Amendment through the 14th Amendment? An originalist would understand the prevailing understanding of the First Amendment would be the same in 1868 as it was in 1791.

  5. Josh Blackman says:

    Do you know that the “prevailing understanding of the First Amendment” is the “same in 1868 as it was in 1791.” Thomas does not establish this, and I am not willing to chalk it up to common sense. A single sentence to the effect of “The understanding of free speech was effectively the same in 1868” would satisfy me.

    With respect to the right to keep and bear arms, I have written elsewhere that the understanding of this right had evolved from the founding era to 1868. In fact, the notion of the individual right was much stronger during Reconstruction than it was during the post-Revolutionary era.

  6. Larry Rosenthal says:

    The understanding of the rights of free speech and a free press evolved a bit from 1791 to 1868. By then, many believed that the First Amendment compelled recognition of a defense of truth in defamation actions, and many though that the suppression of antislavery speech prior to the Civil War violated the First Amendment as well. Yet, these developments were far from entrenched — as late as 1907, in Patterson v. Colorado, Justice Holmes wrote the opinion of the Court characterizing the First Amendment as involving nothing more than a rule against prior restraint. In any event, there was a broad consensus that the government retained broad regulatory power over speech under a deferential “bad tendency” test. For details, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1481478

    In light of the breadth of the bad tendency test in vogue as of 1868, I think it more likely than not that the California statute would have been upheld if the 1868 understanding of the First Amendment were applied in the EMA case. At a minimum, the 1868 understanding provides no support for the Court’s position that any content-based regulation of speech must survive strict scrutiny.

    Larry Rosenthal
    Chapman University School of Law

  7. C says:

    I don’t think I make my point very well. Maybe I’ll do better this time.

    An originalist as I understand it adheres to an interpretive philosophy that seeks to apply the constitution pursuant to its original meaning or intent.

    A non-originalist, at the risk of oversimplifying, would apply the constitution pursuant to an evolving understanding as the applicable provision’s meaning or intent.

    So why would an originalist adhere the mid-19th Century non-originalist’s interpretation of the First Amendment when applying that amendment through the 14th Amendment? Would not the originalist seeking to be consistent with originalism say that the First Amendment would mean the same thing in 1868, pursuant to the amendment’s original meaning or intent, as it meant in 1791?

  8. Josh Blackman says:

    Ah, I think I get what you are trying to say.

    Originalists should be consistent, and say that rights do not evolve over time; that the meaning of free speech was frozen in Amber in 1868 and nothing, not even popular conceptions, should change that. Is that right?

    If so, that would be correct, but for the 14th amendment, which effectively froze a new set of understanding of rights based on understandings in 1868. Popular constitutionalism, leading up to the 14th amendment, actually effected a change in constitutional law.

  9. C says:

    Not exactly; I’ll keep trying to get this right.

    What I am suggesting is that originalist interpretation sees the First Amendment as defined by its original meaning or intent whether you are talking about 1868 or 2011. In other words, the First Amendment cannot have a different meaning in 1868 than it did in 1791 because according to originalism, the original meaning of the First Amendment controls in 1868, when the Fourteenth Amendment was adopted.

    From another angle, I see no reason why an originalist would countenance an evolving First Amendment from 1791 to 1868 than he would a First Amendment that evolves from 1868 onward. The meaning of free speech was frozen in Amber in 1868 for all purposes.

  10. Josh Blackman says:

    According to originalism, the original meaning of the First Amendment controls in 1868, when the Fourteenth Amendment was adopted.

    OK. Now I (hope at least I) get it. I don’t know if the first part of that section is correct. I don’t know that the original meaning controls. In fact, I would argue it does not control. Under my view of incorporation (a misnomer), a set of rights were protected by the 14th Amendment (and really, the Privileges or Immunities Clause) that were both–in the words of Amar–“more and less” than the Bill of Rights. So we aren’t talking about the first amendment as drafted in 1791. We are talking about an understanding of the right of free speech understood in 1868.

  11. C says:

    I just looked over at your blog and see that in the comments to this post there, Leal makes the point I am trying to make here ((s)he made it better). I guess I should have looked over there first.

    You ask there if it is true that in 1868, the 1st Amendment had the same original, public meaning as when it was enacted. My answer to that would be, “Yes, it is true – to an originalist.”

    Can you describe further the difference between the “first amendment as drafted” and the “right of free speech.” Is there a source for the right of free speech beyond the First Amendment?

    Finally, if the First Amendment was “living” and “evolving” from 1791 until 1868 (the only way I can account for a different understanding between the two dates), why did the passage of the 14th Amendment require (a) that the interpretation of the First Amendment applied directly revert then from that 1868 meaning to the 1791 public meaning by virtue of the Fourteenth Amendment being adopted, and (b) why did the passage of the 14th Amendment suddenly “[freeze] in Amber” the previously living First Amendment?