What would Madison think of video games?

During a November oral argument about a California law that would restrict minors from buying violent video games, Justices Antonin Scalia and Samuel A. Alito squared off on constitutional originalism. These two United States Supreme Court justices debated whether the ratifiers of the First Amendment would have included portrayals of violence in video games as protected speech. Alito wryly stated that, “What Justice Scalia wants to know is what James Madison thought about video games” and if “he enjoyed them.” Justice Scalia shot back: “No, I want to know what James Madison thought about violence.”

It looks like Justice Scalia would have the last word. Earlier this week, the Supreme Court of the United States, in a 7-2 split, declared a California law that restricts the sale or rental of violent video games to minors unconstitutional. While Justice Alito did side with the majority in this case, his reasoning diverges from that of Justice Scalia. More interestingly, however, is Justice Clarence Thomas’s dissent. Thomas, though usually in agreement with Scalia and the conservative wing of the bench, leverages the same principle of legal originalism, yet he yields different results.

Originalism: An Overview

Briefly, originalism is a principle of interpretation that aims to discover the original meaning or intent of the Constitution. In particular, Justice Scalia upholds a version of constitutional originalism that looks to what the reasonable person living at the time the document was first adopted would have declared its ordinary meaning to be. Justice Antonin Scalia, a bright beacon of conservatism on the bench, is arguably the strongest proponent of originalism.

Today, constitutional originalism, for better or for worse, is inextricably linked to politics. The US Congress, led by Republicans, opened this year’s session with a reading of the Constitution, followed by a rule that was put forth whereby all proposed bills must cite a constitutional authority.

The close nexus that has formed between the conservative wing of America, such as the Tea Party movement, and legal originalists has made some scholars and politicians highly cautious. Following an originalist line of interpretation, we would return to the founders’ vision of America. For example, states could impose the death penalty on anyone, including juveniles and the mentally disabled, and there would be no abortion rights or rights of assisted suicide for the terminally ill. Moreover, Scalia famously, or infamously, argued that the 14^th Amendment, the equal-protection clause, was not meant to apply to discrimination based on sex or sexual orientation. The Supreme Court therefore erred by protecting both, as “nobody ever thought” that the Constitution would ban sex discrimination, according to Scalia.

To be or not to be an Originalist?

This case of Brown v. Entertainment Merchants Association provides the ideal platform for constitutional originalism. Video game technology did not exist at the time the founders drafted the constitution, so the justices, namely Scalia and Thomas, would have to speculate as to how the founders would have viewed such technology. (Cue Alito’s joke.) Ultimately, the Court would have to decide the issue of whether a California law that bans the rental or sale of violent video games to minors infringes on the First Amendment.

The law at issue covers games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what it suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political or scientific value for minors.”

Justice Scalia:

While he does not try to delve into the thoughts of James Madison, as Alito joked about, Scalia, writing for the majority of the Court, does offer reasons that are contextual to the drafting of the constitution. Scalia compares these video games to technologies that would have been around at the time – books and plays. “Like the protected books, plays and movies that preceded them, video games communicate ideas – and even social messages – through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world.” He continues down this path, noting that the Grimm’s’ Fairy Tales – from Cinderella’s sisters’ eyes being poked out by birds to cannibalism in “Hansel and Gretel” – were riddled with violence. Madison would have witnessed children exposed to violence in a similar way, in other words. Scalia concludes that this “suffices to confer First Amendment protection.”

Justices Roberts and Alito:

While Justices Samuel Alito and John Roberts voted with the majority, they are not in agreement with Scalia about the similarity of these various media. Mainly, Alito is not comfortable with Scalia’s dismissal of the differences between video games and other media. One example that Alito raises is a game where a child assumes the role of a character and goes on a mission where “the objective… is to rape a mother and her daughters.” Another video game demands its players to assassinate President John F. Kennedy. Video games construct a digital reality to the extent that children who play 3-D games may be able to “feel the blood [splattered] from the blown-off head” of a victim.

For Alito and Roberts, the California law may have survived a First Amendment challenge if it were more narrowly worded.

Justice Thomas:

Using Alito as a foil, Thomas proves to be the most interesting justice in this case. Thomas begins his dissent by beating the drums of originalism even louder than Scalia. He cites a number of cases where originalism is touted: “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted” in interpreting a constitutional provision; this is because the Constitution is a written document, so “its meaning does not alter” (McDonald v. Chicago and McIntyre v. Ohio Elections Commission). It does not hurt that Thomas concurred in judgment in both of these cases.

Ultimately, Thomas agrees with Scalia and the majority that the law should be struck down. For Thomas, however, it is not because the law “abridg[es] the freedom of speech,” as the majority decided. Rather, for him, the First Amendment has never “stretched” so far as to include the freedom of speech of minors. Thomas’s reason is even more firmly grounded in originalism, as he declares that “the practices and beliefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians.

Thomas spends the bulk of his dissent deferring to authorities such as John Locke, Jean Jacques Rousseau and Lydia Child to paint a picture of the Western family where parents control their children, despite children’s rights slowly coming into law in recent decades.

So Where does Originalism Leave Us?

While originalism seems to have prevailed at the end of the day in Brown v. Entertainment Merchants Association, the quibble between Justices Scalia and Thomas, two bulwarks of originalism, exposes methodological problems. One critique that liberal scholars have launched against originalists is that originalism is only adopted when it is convenient. If originalism were consistently adopted, then people could be punished for criticizing the government, the federal government can discriminate against whomever they wish, the Federal Reserve would be gone, the criminal justice system would fall apart, etc. Thus, originalism cannot be a principled tool of constitutional interpretation. It is more of a rhetorical argument – much in the same way as Thomas effectively harnesses the rhetoric of Locke and Rousseau in his dissent.

On the other hand, some liberal scholars note that originalism does not have to serve conservative ends exclusively. If the Court really took the entire text and history of the Constitution seriously – such as the 19^th Amendment, which gave women the right to vote – then originalism would actually alleviate problems of gender discrimination. Liberty and equality would be furthered if the “originalist” Court would take 20^th century amendments as seriously as those passed in the 18^th- and 19^th centuries.