Recently, the United States Supreme Court has overturned a California ban on the sale of violent video games to children. The Court ruled that the government had no authority to restrict ideas that children may come in contact with. While I certainly agree with this, I have some constitutional reservations. Anthony Gregory of the Independent Institute explains: "Justice Clarence Thomas dissented, saying the First Amendment was never meant to apply absolutely to distribution of ideas to children. I have a big problem with his reasoning. Certainly, if the First Amendment was meant to exempt situations concerning commercial dealings and children, it would say something like 'Congress shall make no law. . . abridging the freedom of speech, except where children are concerned.' Similarly, any conservative arguments that the First Amendment is not meant to apply to pornography, or liberal arguments that it is not meant to cover political contributions, bother me.
Yet one thing we do know is that the First Amendment was originally not meant to apply to state governments. The Bill of Rights bound the federal governments, not the states, until after the Civil War. A decision in 1833, Barron v. Baltimore, upheld this very distinction. This makes historical sense, as several states at the time of ratification had official religions, which would have been illegal under the First Amendment, had that amendment applied to the states. But it didn’t. And, although I am against all state-legal violations of free speech and religious liberty on libertarian grounds, the particular scheme whereby only the federal government was restrained by the Bill of Rights made a lot of sense from the standpoint of structural coherence."
The Real Constitution and United States of America
Under the U.S. Constitution, our country was designed to be a federal constitutional republic. The Framers made sure that the Constitution, and the union/confederacy that it created would be "federal". A federal government means that not only is their a weak central government and many state governments that retain most of their sovereignty (which are also made up of multiple localities), but that the powers of the central government are to be enumerated. This means that the central government in a federal system is to be extremely limited to the powers enumerated in the Constitution. It is correct to say that the Framers and Ratifiers intended that the Constitution be strictly interpreted, otherwise, the Constitution becomes meaningless in limiting government power. The United States was founded as a federal republic (which could also mean a confederacy) under the U.S. Constitution. This contrasted the "nation-states" that dominated Europe. In a "nation", government power is unlimited, while in a federal republic, the powers of government are very limited. This is why the United States was not founded as a "nation", but rather, as a confederacy.
The Incorporation Doctrine
Anthony Gregory continue: "With this in mind, the adoption of the First Amendment didn’t actually change anything. The anti-Federalists wanted a Bill of Rights, but only to make explicit the guarantees that were already assured them by the Federalists. The Constitution gives Congress no power to regulate speech, religion, or assembly, and so the First Amendment doesn’t add any new restriction upon Congress; it only reaffirms an implicit restriction that already existed. Same with the Second Amendment—the right to bear arms cannot be infringed by the federal government anyway, since the Constitution doesn’t establish the power to ban guns in the first place. This is all harmonious and sensible, if a bit redundant (in fact, the Federalists made the valid point that the superfluousness of a Bill of Rights would eventually undermine the strength of the Constitution as one of enumerated powers, which has in fact more or less happened). But what is less consonant is the attempt to apply the Bill of Rights to the state governments, which has happened since the Civil War through a number of Court decisions that have in a somewhat ad hoc manner given rise to the constitutional construction known as 'incorporation.' The Bill of Rights, starting with the First Amendment—an irony, since it alone singles out the federal Congress for limitation—was 'incorporated,' most often through the due process clause of the Fourteenth Amendment, meaning that these amendments now apply to the state governments.... Perhaps the Founders would have indeed thought it absurd for state governments to be restrained from regulating video games, but they would have also thought it odd to say that Congress could do so, and the whole dissonance has arisen because of the incorporation doctrine." The incorporation doctrine has brought about confused mess as far as the 1st Amendment is concerned. The 1st Amendment to the U.S. Constitution reads as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." As this Amendment shows, the 1st Amendment is clear in its' intent to restrict the federal government, not state governments. At the time of the writing of the Constitution, many state government (with the exception of Virginia for sure) had their own established state-religions (as a Christian and a libertarian, I am all for the genuine separation of church and state, no the phony one we hear about in the textbooks). Under the incorporation doctrine, the federal government would force all those state governments with official state-religions to abandon them. But this would make no since because the 1st Amendment applies to the federal government only (or at least that was the original intent.).
Conclusion
In conclusion, I would have to agree with the following sentiments of Anthony Gregory: "Bottom line: Given that the Supreme Court had to define the limits of the First Amendment and sees itself as bound by the incorporation doctrine, I am very glad that Scalia and six fellow justices struck a blow for a broad reading of our guarantees to free speech. At the same time, I kind of see where Thomas is coming from in his instincts that the First Amendment was not meant to apply to all cases, although not his particular reasoning. Assuming we have to have the incorporation doctrine, I will always side with judicial interpretations that allow for the most liberty, and would do so even if I favored decentralism—since any weakening of the Bill of Rights’s restrictions on the states can eventually translate into weak restrictions on the feds. But perhaps more work needs to be done in revising the incorporation doctrine so as to allow for the most absolute of prohibitions on the federal level while being more coherently applied on the state level."
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