Legal scholar Jeffrey Rosen, inspired by Supreme Court Justice Antonin Scalia's recent controversy-generating statement that the Constitution doesn't protect women from discrimination, writes in the New York Times about the Supreme Court's originalists. The Constitutional originalists, led by Scalia, believe the law should adhere as closely as possible to the Constitution's text and to the founders' original intentions. That approach informs how the originalist-leaning Justices interpret everything from civil rights to commerce.
But what does strict originalism say about dealing with issues that simply didn't exist in the late 18th century? It turns out that this can be a real problem for the Court's originalists. Rosen looks at one area where the Constitution gets a little tricky to interpret--video games.
In addition to disagreeing about the value of previous precedents, the conservative justices disagree among themselves about what the founders would have thought about technologies and institutions that didn’t exist when the Constitution was written.
In a November oral argument about a California law restricting minors from buying violent video games, Justices Scalia and Samuel A. Alito debated whether the ratifiers of the First Amendment would have thought that it protected portrayals of violence.
"What Justice Scalia wants to know is what James Madison thought about video games," and if "he enjoyed them," Justice Alito said sarcastically. Justice Scalia shot back, "No, I want to know what James Madison thought about violence." The dispute will be resolved in the opinion, to be issued later this year.
We'll have to wait to read the Court opinions to know how the Justices imagine the founders would have thought about violent video games. In the meantime, Rosen's--and Alito's--point is clear: strict originalism isn't always as black-and-white as one might like it to be.