Tuesday, September 13, 2011

David Post on Justice Thomas' Originalism

Prof. Post was one of my favorite professors at Temple Law. At Volokh, he notes what strikes many as problems with the kind of originalism Justice Thomas articulates:

In support of this latter proposition—which, more or less, ends the constitutional inquiry for Justice Thomas—he relies, inter alia, on Wadsworth’s “The Well-Ordered Family” of 1712, Cotton Mather’s “A Family Well-Ordered” (1699), “The History of Genesis” (1708), Locke’s “Some Thoughts Concerning Education” (1692), Burgh’s “Thoughts on Education” (1749), along with a number of more recent scholarly studies focused on child-rearing practices during the Founding period.

That is originalism on steroids, and, to my eye, rather poignantly illustrates the weakness of the approach. I understand, and am sympathetic to, the notion that the meaning of a constitutional provision should be informed by the meaning given to it by those who drafted and ratified it. But can that really mean that we will look to the child-rearing principles of Cotton Mather and John Locke to define, for all time, the scope of the constitutional protection for free speech? Even assuming that Justice Thomas (or anyone else) can reconstruct the sociology of the eighteenth century to definitively support the notion that parents possessed “absolute authority” over their children, and that “total parental control over children’s lives” was the governing societal norm—what then? The question in this case is not “do parents have absolute authority over their children?” The question in the case is, rather, “how does what the state did here relate to (a) the authority of parents over their children, (b) the power of the state to protect the well-being of children, and (c) the constitutional protection for ‘the freedom of speech’?” That’s a hard question in 2011, and it would have been a hard question in 1791, because it involves categorization: Is this, actually, a case about the authority of parents over their children? Or is it a case about the extent of the state’s power to protect minors? The scope of the First Amendment rights of video game manufacturers? Or the scope of the First Amendment rights of minors? ....

I'd like to see Prof. Post get more involved in the, "what kind of originalism is valid originalism" dialog among with others Randy Barnett, Akhil Amar, and Lawrence Sollum.


Phil Johnson said...

Perhaps some readers are familiar with A. W. Gouldner's thinking on the New and Old Classes?
I'm thinking Constitutional Originalism puts those who uphold it as members of the Old Class. Or is it just exactly the other way around that the popular form of Conservatism is a product of Old Class thinking?
(My Norton Anti-Virus keeps closing down my access to American Creation with a warning of a "Suspicious Web Page Blocked" interception. Is there a program at the blog site that does phishing?)

Tom Van Dyke said...

I'll dissent, Jon.

I thought Dr. Post got his ass kicked in the comments section [go back and read the link], but I'll go where no man has gone before.

First read how Justice Thomas might actually be brilliant, not just some right-wing affirmative action window-dressing Scalia-ass sucking twit, as written by a left-wing hind-teat sucking twit.


Jon, as we've previously discussed about libertarian-minded Randy Barnett [whose work I like]---once he untethers "liberty" and "rights" from the Founding understanding of liberty and rights under "natural law," all we have left are the words liberty and rights.

They mean nothing. Hollow shells.

Justice Thomas is a bit of a genius on this, researching what rights and liberty meant when we ratified the Constitution. It does not mean a parent surrendering his child to the state. We as a people never agreed to that, and we do not consent to it now.

Jonathan Rowe said...

Well I agree that Justice Thomas is brilliant. And that the narrative that he is Justice Scalia's suck ass is complete BS.

Thomas is 1/9 -- a man unto himself -- with his idea that the natural law of the Declaration of Independence should incorporate into justiciable constitutional jurisprudence. And it's a valid theory of constitutional interpretation.

Daniel said...

I agree that Thomas' conclusion seems to skip some historical bases. Yes, parents were accorded great authority over their children. But once that children went forth into the market, the parents would have understood that the influences of the market would impact their children.

Despite questioning the historical result, I have no problem with the general approach. The Constitution (including the First Amendment) is a body of law with a particular meaning. If that meaning is no longer approapriate to contemporary society, we are stuck with it until we change it.

Justice Thomas seems a bit too confident in his certainty about historical meaning. And Cotton Mather seems a little far removed. But, to the extent that we can know it, the historical meaning is the meaning of the document.

Phil Johnson said...

Tradition is a powerful force.