The Logic Used To Reverse Roe Cancels Laws Against Child Porn

While Dobbs says there is no right to an abortion, under its logic there IS a 1st Amendment right to publish kiddy porn.

Thomas Hawk on Flickr

By David Grace (Amazon PageDavid Grace Website)

I recently wrote about the constitutional rights we used to have that disappeared under the majority’s logic in its reversal of Roe v. Wade:

The Majority’s Doctrine Of Originalism

Justices Alito and Thomas’ decision overruling Roe was based on their interpretation of the Constitution according to their philosophy of originalism.

Justice Scalia was a major supporter of the doctrine they used, originalism, which held that the Constitution should be interpreted based on what the actual, specific words in the Constitution were generally understood to mean by the Americans who ratified the document.

While Originalism Cancels Some Rights It Also Grants Others

Of course, Justice Alito’s originalist determination that abortion was not a right protected by the Constitution means that the originalist theory must also be used to determine the scope of the rights that the Constitution does protect.

How Originalism Interprets The Scope Of The 1st Amendment

Let’s take a look at the scope of the First Amendment’s protection of the freedom of the press according to the doctrine of originalism.

“Congress shall make no law . . . abridging the freedom of speech or of the press. . . .”

The text is absolutely clear. No law. Period. No exceptions.

So, Scalia and Alito would say that the First Amendment means that whatever the term “freedom of the press” generally meant to the citizens in 1791 is entitled to absolute protection from government interference without exception because that’s exactly what the text says.

The 1st Amendment’s Protection Of Visual Content

In 1791 people were familiar with books that contained illustrations, so they knew that freedom of the press included the freedom to publish drawings, sketches, illustrations and paintings.

Since there is no language whatsoever in the Constitution excluding any kinds of images from the protection of the First Amendment, then under the theory of originalism the Constitution prohibits the government from enacting any laws that restrict anyone’s ability to publish any visual material.

If the Constitution means exactly what it says, and since the ordinary citizen in 1791 understood the term “the press” to include the publication of visual content, then under the doctrine of originalism the clear words of the First Amendment must be enforced to prohibit the government from making any laws that prevent people from publishing any pictures of naked adults and any pictures of naked children.

So How Are Originalists Going To Get Around That Unhappy Result?

Of course, Alito and Thomas don’t want that to be the case, so how are they going to get around the result dictated by their own theory?

Do Alito and Thomas want to amend their definition of originalism to say that the words in the constitution don’t really mean what people in 1791 thought they meant, but rather they mean what people in 1791 would now think they would have meant then if you used a time machine to go back to 1791 and explain to those citizens how the world has changed in the last 200+ years?

“So, Mr. Josiah Bartlett, now that we’ve explained what a camera is and what a photograph is, how say you, does the term ‘freedom of the press’ as used in 1791 include or not include the freedom to reproduce and distribute pictures of naked people?”

Or, are we supposed to examine books, letters and publications from 1791 to determine what the average citizen in 1791 would have thought the term “freedom of the press” would have meant in 1791 if they had known then about all the stuff that’s happened in the succeeding 200+ years?

Can anyone figure anything out based on that tortured logic?

And How Can We Avoid Another Unwanted 4th Amendment Result?

Do we need to go through a similar exercise to determine whether the citizens in 1791 generally thought that the words “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” meant that without a warrant the government could or could not use a wireless microphone or hidden camera to listen to and watch people; use or not use sophisticated devices to intercept cell phone transmissions; use or not use electronic components to track people, if they had known what those things were?

What an idiotic idea.

It’s Ridiculous To Claim That The Specific Text Of A Document Created In 1791 Can Possibly Be Used To Govern The World Of 2022

The world today is far beyond the imagination of anyone living in 1791, and far beyond anything that was or could have been contemplated by Madison when he drafted the text of the First and Fourth Amendments.

The idea that in any reliable way a judge today can determine if the First or Fourth Amendments do or do not forbid or require some conduct that was never contemplated or able to be contemplated by Americans living in 1791 is beyond ridiculous.

How can anyone seriously say that the Constitution today only means what the citizens of 1791 thought its specific words meant in 1791 with regard to events in 2022 that the ordinary person living in 1791 never could have thought of at all?

How can anyone intelligently say that the term “freedom of the press” as understood in 1791 either protected conduct or allowed the criminalization of conduct in 2022 that the citizens living in 1791 could not have imagined in their wildest dreams?

Words Used In 1791 Cannot Encompass Everything That Happens In 2022

How can anyone seriously say that the Constitution

  • Protects the publication of photographs of naked children because the voters living in 1791 understood “the press” to include illustrations or
  • Allows the government’s warrantless electronic surveillance of citizens because the voters living in 1791 didn’t understand the terms “search and seizure” to include eavesdropping on wireless phone calls?

The Mindless Application Of Flawed Theories Yields Bad Results

When the result of a mental process is ridiculous, the theory that generated that result is wrong.

The Constitution Is Not A Specific, Detailed Map — It Is A Statement Of The Rules Of The Road

The Constitution is not like a piece of cloth of a fixed size that only covers what it covers and nothing else no matter how hard you tug and twist it.

The Constitution is a set of general principles intended to be intelligently and reasonably applied to whatever factual situations that may arise.

The Principle Of Freedom Of The Press

When the Constitution says that the government shall not abridge the freedom of the press, it means that the nonverbal expression and distribution of ideas must be protected from unreasonable government interference, and for any government restriction to be reasonable there must be a compelling, vital reason to do so, and then only when and to the extent that the serious concern cannot be effectively remedied in any other way.

Under this principle, it is constitutional to prohibit child pornography.

The Principle Of Freedom From Unreasonable Searches & Seizures

When the Constitution says that the government may not subject citizens to an unreasonable search and seizure of their persons, houses, papers, and effects it means that the government may not unreasonably invade the privacy of American citizens no matter what means the government may wish to use to do so.

Under this principle, the government may not surveil or track its citizens without a warrant.

Originalism Yields The Opposite, & Wrong, Results

If you’re going to follow Scalia’s notion that the protections that the Constitution does and does not grant are determined solely on

  • (1) the exact words contained in the document and
  • (2) what people in 1791 generally understood those words to mean, then

— The clear, unrestricted language of the First Amendment forbids the government from enacting any laws that prohibit the publication of any pictures of naked adults and any pictures of naked children, and

— The specific language of the Fourth Amendment allows the government, without a warrant, to electronically track the movements of its citizens.

The Idiocy Of Elevating Theory Over Reality

One of the hallmarks of a fool is the stubborn insistence on the elevation of an esoteric theory over a vital, practical reality.

Famously, in two separate opinions Mr. Justice Jackson and Mr. Justice Goldberg said: “The Constitution is not a suicide pact.”

And that pretty much says it all.

— David Grace (Amazon PageDavid Grace Website)

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David Grace

David Grace

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Graduate of Stanford University & U.C. Berkeley Law School. Author of 16 novels and over 400 Medium columns on Economics, Politics, Law, Humor & Satire.