Civil and Human Rights

Justices Scalia, Alito Square Off on Originalism

Supreme Court Justice Antonin Scalia is the nation’s most important conservative originalist, a long time champion of the view that the original intent of the framers binds the Justices, and it often falls to progressives to point out the pitfalls of a version of originalism that seeks to divine what James Madison would have done if faced with today’s unique technical challenges and constitutional questions.   So, it’s a pleasure to see Justice Samuel Alito take Justice Scalia to task for his faulty originalism.

The Scalia-Alito debate took place Monday during the Court’s oral argument in the case of Schwarzenegger v.  Entertainment Merchants Ass’n, a First Amendment challenge to a California law regulating violent video games.  Over the course of the argument, Justices Scalia and Alito went toe-to-toe, debating whether the original intent of the 18th Century framers of the First Amendment should dictate the constitutionality of governmental efforts in the 21st Century to limit children’s access to violent video games.

It’s usually conventional wisdom that the Constitution’s text matters most, and the framer’s original intent matters least, in cases involving modern technologies, like wiretaps or the internet, which the framers could never have imagined, a point Justice Scalia himself recognized in a 2001 ruling that the Fourth Amendment limits government use of thermal-imaging devices.  But, during Monday’s argument, Scalia took a different tack, repeatedly arguing that the California law regulating video games was contrary to the original intent of the men who framed and ratified the First Amendment.   California’s regulation of violent expression in video games, Scalia urged, was a “prohibition which the American people never . . . ratified when they ratified the First Amendment.”  Portrayals of violence, Scalia said, were understood by the framers to be part of the freedom of speech the First Amendment protected.  For Scalia, that was the end of the matter.

Mocking Justice Scalia’s approach, Justice Alito shot back, telling California’s Deputy Attorney General that “what Justice Scalia wants to know is what James Madison thought about video games” and if “he enjoyed them.”  Alito pointed out that video games are a “new medium that cannot possibly have been envisioned when the First Amendment was ratified” and that it was “entirely artificial” to say that the framers meant to protect violent video games in which children act out violence because the framers would have accepted violent portrayals in books.  Justice Scalia had no convincing reply.

Justice Scalia may well be correct that the California’s limit on violent video games is contrary to the best interpretation of the First Amendment’s broad text, but he hardly helps his cause by defending a wooden form of originalism that pretends the framers resolved constitutional questions they could never have imagined.  If this is what passes as originalism from the nation’s most prominent originalist, count me out.

Cross-posted on Balkinization.

This article has been reprinted in the following publications

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