The Rights of Parents and the Wisdom of Clarence Thomas

Of all the current Supreme Court Justices, Clarence Thomas is probably the one whose legal reasoning is most under-appreciated. Thomas often expresses a keen understanding not only of what the law is but what it is for .

A prime example is provided by Quin Hillyer in his article explaining Thomas’ dissent in the recent ruling that decided a California law banning the sale or rental of “violent video games” directly to minors without parental involvement was unconstitutional. Thomas makes the argument, based on precedent, originalism, and natural law, that parents have the right to educate and socialize their children:

[W]hat is remarkable is the power and eloquence of Justice Thomas’ dissent – and the consistency of his assertions to this effect for a full quarter-century. His central thesis is that neither the First Amendment nor any other provision of law supersedes the fundamental right of parents or legal guardians to protect their children, nor supersedes a government’s interest in protecting the parents’ ability to do so.

“The practices and beliefs of the founding generation,” he wrote, and then demonstrated at great length, “establish that the ‘freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” This is consistent with his assertions in several cases beginning with Troxel v. Granville in 2000 that “parents have a fundamental constitutional right to rear their children, including the right to determine who shall educate and socialize them.”

Apart from the details of the video-game case, which may or may not involve threats to that fundamental right, it should be inarguable that such a right does adhere to parents (or legal guardians), and that protection of that right is essential to this nation’s ordered liberty. This is key: Rights apply not directly to children, but to them only through their parents. A law which prohibits parental authority (except in cases of abuse) violates this understanding (which predates and underlies the Constitution); while a law that aids parents in asserting such authority, without imposing the state’s own judgment, ordinarily is consonant with the Constitution.

As Thomas noted in his dissent in Brown, all the way back to and even before the founding, “the law imposed age limits on all manner of activities that required judgment and reason.” It still does so today, so that courts have upheld even such dubious strictures as a drinking age (21) that is above the otherwise legal age of majority (18).

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