Critique of Justice Thomas’ History in Brown v. EMA

August 10th, 2011

Justice Thomas’ solo dissent in Brown v. EMA attempted to sketch an originalist narrative of the role of the state in protecting children. David Tanenhaus has this post critiquing Thomas’ history:

His citations alone could serve as the required reading list for an excellent course on the history of children, law, and society.

More significantly, Thomas uses this literature to reach his conclusion about children and the First Amendment. As he declares, “In light of this history, the Framers could not possibly have understood ‘the freedom of speech’ to include an unqualified right to speak to minors. Specifically, I am sure that the founding generation would not have understood ‘the freedom of speech’ to include a right to speak to children without going through their parents. As a consequence, I do not believe that laws limiting such speech—for example, by requiring parental consent to speak to a minor—‘abridg[e] the freedom of speech’ within the original meaning of the First Amendment.”

Yet what I find most striking about Thomas’s opinions on children and the law—e.g., Morse v. Frederick, 551 U.S. 393 (2007) and Safford Unified School District v. Redding, 557 U.S. __ (2009)—is the underlying assumption that the family was a private institution in antebellum America.

For me, the paradigmatic antebellum case is Ex Parte Crouse (1838), a Pennsylvania decision about the Philadelphia House of Refuge that introduced the concept of parens patriae into American family law. . . . Crouse, of course, fits with William Novak’s common law vision of a well-regulated society. It doesn’t work quite so well with Justice Thomas’s constitutional vision of children and families.

I criticized Thomas’ opinion on originalism at the wrong time grounds here.