SCOTUS 'Originalists' and Video Games

January 11, 2011 -

The Atlantic Wire asks the question "What Does the Constitution Say About Video Games?" by pointing to a New York Times article about the Supreme Court's "originalists." These justices, led by Justice Scalia, believe the law "should adhere as closely as possible to the Constitution's text and to the founders' original intentions," according to the Atlantic Wire.

So what does this mean as it relates to new technology the founding fathers could have never imagined like video games?

Here is some of what the New York Times article said about it:

"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.

The point of both articles is pretty clear: strict originalism cannot always address issues that aren't black and white.. like video games and violence. However, technology really has nothing to do with it; the founding fathers would deal with video games the way they would deal with movies, music, television and literature - as forms of free speech.


Comments

Re: SCOTUS 'Originalists' and Video Games

You cannot snatch up those from that period in time and bring them here and hope they magically understand all the other social changes that occurred between their time and our time.

They would have had to actually have evolved along with society over the hundreds of years since their time til now.

That does not mean they would have HAD to have accepted the changes that occurred over time.  But as society evolved, and they lived through those changes, they would have been able to grasp those changes much easier than to be suddenly thrust from then to now.

I've always found the argument of "The Founding Fathers never meant for the US Constitution to do or include so-n-so".  The Founding Fathers of the US Constitution TRIED to make it as neutral and generic as possible.  To deal with probable changes within their understanding that may still have conflicted with their own personal beliefs.  The Constitution was not written to defend only THEIR beliefs and no one elses.  And it was designed sufficiently to BE Amended in case there were situations they could not anticipate or predict.  That was quite clear as it CAN be Amended.

Nightwng2000

NW2K Software

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Nightwng2000 is now admin to the group "Parents For Education, Not Legislation" on MySpace as http://groups.myspace.com/pfenl

Nightwng2000 NW2K Software http://www.facebook.com/nightwing2000 Nightwng2000 is now admin to the group "Parents For Education, Not Legislation" on MySpace as http://groups.myspace.com/pfenl

Re: SCOTUS 'Originalists' and Video Games

I always think of it as siding with the average person and their freedoms the most (say a persons right to back up and play their copies vrs a companies right to prevent it via the courts, they have the right to create DRM and online activations and what not but the public has the right to bypass it legally or should).  Basically an individuals right dose not easily get over turned or mitigated(made illegal, stupid dose not make something worthy of law,IE j walking), the right bare weapons is a right it should be unquestioned, you deal with the crime that happens after the fact not go bat shit loco over every instances of quasi questionable purchases or stock piles(unless you can track crimes from said stock pile). Of course we need a better system to keep felons away from weapons anything more than that is really un needed. 

 

The trouble tho is president the courts have said X or Y over the years and thus the law has been derived from that and not the constitution itself, that is a problem with modern law and modern government we are not following a distilled founding rather we are following what has been derived from and after awhile it becomes sewage...


I have a dream, break the chains of copy right oppression! http://zippydsmlee.wordpress.com/2010/05/21/cigital-disobedience/


Copyright infringement is nothing more than civil disobedience to a bad set of laws. Let's renegotiate them.

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Re: SCOTUS 'Originalists' and Video Games

Just because Scalia says he's an "Originalist" does not make it so. It's funny how the Founding Fathers all seem to agree with Scalia's political views despite clear historical evidence that they did not. He's intellectually dishonest at best, and an outright liar at worst. Never forget that.

Re: SCOTUS 'Originalists' and Video Games

The tricky part about trying to get inside the founder's heads..... for starters, there were many founders with a variety of views and goals.  The Constitution and Bill of Rights were both compromise documents that were arrived at though a long series of arguments.. and they had some vagueness built into them because different states wanted wiggle room to do things that other states did not want them doing.

There was also a very different worldview back then, that the justices should be careful about using as a meter stick.  For instance there was quite a bit of 'well of course we don't mean (insert group) should be protected'.. which of course the 'originalists' like to point to as proof that the Bill of Rights was not meant to apply to everyone.  Why should they be careful?  Well, for starters... Catholics and Jews were two of those groups that it was just assumed that religious protections would not be extended to.... so Originalists, if they were truly keeping to those early assumptions that they use to back up their prejudice.. only 2 of the justices would find their personal faith protected.

Re: SCOTUS 'Originalists' and Video Games

I dunno you can always depend on it to tilt to an individual's freedom regulated by the state they are in. If you try and do more than that that you are just practicing disingenuity.


I have a dream, break the chains of copy right oppression! http://zippydsmlee.wordpress.com/2010/05/21/cigital-disobedience/


Copyright infringement is nothing more than civil disobedience to a bad set of laws. Let's renegotiate them.

---

Patreon

Deviantart

Re: SCOTUS 'Originalists' and Video Games

Games have plot, stories, make people laugh, cry. They are as much as art that movies, books, TV and music is. Here is hoping the SCOTUS agrees.

Re: SCOTUS 'Originalists' and Video Games

Though, sometimes those tears come for the wrong reasons, like playing a troll game (Kaizo Mario, IWBTG) or a highly glitched/bugged game (Alpha Protocol, New Vegas)

 
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