In his 1963 article "Time to Reclaim: The Current Challenge of American Constitutional History," Paul Murphy turned to the pages of the American History Review to criticize Justice Black’s use of history in Engel v. Vitale (1962). As Murphy asked, “What should bother the historian is the type of history Black used in evolving a basis for an important constitutional ruling. For in tracing the historical development of church-state relations, the most recent work he cited was Thomas J. Wertenbaker’s 1947 volume, The Puritan Oligarchy, and for the most part he relied upon works which may be "historical" given the length of time in the past they were written, but which modern scholars would hesitate to suggest an undergraduate rely upon as anything but a once important, although now outdated view.”
I was thinking about the Murphy article, as I read Justice Thomas’s dissent in Brown v. California, 564 U.S. ___ (2011) [the California video games case]. Unlike Black in Engel, Thomas cites up-to-date literature on children and families in early American history. He quotes, for example, from Steven Mintz’s Huck’s Raft (2004) and cites Holly Brewer’s By Birth or Consent (2005). 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. In a per curiam opinion, the court declared:
“The House of Refuge is not a prison, but a school. Where reformation, and not punishment, is the end, it may indeed be used as a prison for juvenile convicts who would else be committed to a common goal; and in respect to these, the constitutionality of the act which incorporated it, stands clear of controversy. It is only in respect of the application of its discipline to subjects admitted on the order of the court, a magistrate or the managers of the Almshouse, that a doubt is entertained. The object of the charity is reformation, by training its inmates to industry; by imbuing their minds with principles of morality and religion; by furnishing them with means to earn a living; and, above all, by separating them from the corrupting influence of improper associates. To this end may not the natural parents, when unequal to the task of education, or unworthy of it, be superseded by the parens patriae, or common guardian of the community? It is to be remembered that the public has a paramount interest in the virtue and knowledge of its members, and that of strict right, the business of education belongs to it. That parents are ordinarily entrusted with it is because it can seldom be put into better hands; but where they are incompetent or corrupt, what is there to prevent the public from withdrawing their faculties, held, as they obviously are, at is sufferance? The right of parental control is a natural, but not an unalienable one. It is not excepted by the declaration of rights out of the subjects of ordinary legislation; and it consequently remains subject to the ordinary legislation; and it consequently remains subject to the ordinary legislative power which, if wantonly or inconveniently used, would soon be constitutionally restricted, but the competency of which, as the government is constituted, cannot be doubted. As to abridgement of indefeasible rights by confinement of the person, it is no more than what is borne, to a greater or less extent, in every school; and we know of no natural right to exemption from restraints which conduce to an infant’s welfare. Nor is there a doubt of the propriety of their application in the particular instance. The infant has been snatched from a course which must have ended in confirmed depravity; and, not only is the restraint of her person lawful, but it would be an act of extreme cruelty to release her from it.”
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.