Video Games, the 1st Amendment, and the Trouble with Incorporation

The Supreme Court has just overturned a California ban on violent video game sales to minors in a decision penned by conservative Justice Antonin Scalia. 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 federal government was unique in that it was a government of enumerated powers. All Congressional authority, for example, emanates from Article I, Section 8. Unlike the much more common model, whereby nation-states have plenary power unless their constitutions say otherwise, the United States government only had those powers particularly listed in its own Constitution.

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.

The problem is, the state governments are not supposed to be governments of enumerated powers. The states are where most law and most government power, in actuality, are fashioned. If Congress passed a law that prohibited libel, whether or not that is in the spirit of the First Amendment, it is constitutionally invalid, as Congress has no constitutional authority to pass laws on libel. Same with Congress banning grenade launchers in public parks—this would be invalid whether under the Second Amendment or simply the enumerated powers doctrine.

But is it really unconstitutional for a state government to ban grenade launchers on public parks? Is it unconstitutional for the state to pass libel laws? And what about the Ninth Amendment, which guarantees us all rights not enumerated in the Constitution? How on earth is this supposed to be enforced against a state government without pretty much ridding of its power to do anything?

As an anarchist, I favor abolishing all state-level criminal sanctions and regulations, although I’m not crazy about the top-down approach. But I can see the conservative argument that it is not honest to argue that the First Amendment, for instance, precludes local governments from forbidding the posting in public parks of hardcore pornography. I don’t favor government policing in this area, but I don’t think the First Amendment can coherently be applied to this—or to questions of religious expression in the local public square—nearly as cleanly as it can be applied to federal questions.

But conservatives who wish not to overturn any and all state restrictions on what could feasibly be described “free speech” are in a bind, so long as they follow the Court on the reasoning that the First Amendment controls the states. Because if they argue the First Amendment doesn’t go so far as to prevent the state-level regulation of video game sales to minors, and they believe the First Amendment equally applies to the state and federal level, they are effectively weakening the First Amendment’s scope even as it concerns federal authority. Would it be constitutional for Congress to pass such a law against video game sales? Clarence Thomas would presumably say it is not a First Amendment violation. And I have a big problem with that. But it all arises because the Court has attempted to apply the First Amendment to state governments while respecting to some degree “common sense” limitations to the scope of that Amendment. 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 Kelo case from several years back had similar implications for the Fifth Amendment. A Connecticut act of eminent domain was upheld, watering down the power of the “public use” requirement—whether that requirement is nearly as important, from a libertarian standpoint, as it’s made out to be, is a different matter. But as terrible as it was to rubber stamp a state-level eminent domain abuse, my concern was much more long-term, with an eye to the federal government. Again, it would at least be coherent to say the Fifth Amendment does not bar the states at all, while it provides an iron clad prohibition on virtually all federal eminent domain (for private use). In wishing to defer to state-level eminent domain discretion, the Court has opened the door for more federal eminent domain abuse.

One last example: Sonya Sotomayor was taken to the woodshed by conservatives for saying the Second Amendment didn’t apply to local restrictions on nunchucks. Under the original Second Amendment, she had a valid point: It would have startled the Constitution’s authors to say that the state governments couldn’t pass any restrictions whatsoever on any weapons. Not to defend the practice, but at the time, slaves were certainly restricted in the right to bear arms, and this was not seen as a violation of the Second Amendment. Under the pre-Civil War understanding, a California prohibition on selling machine guns to five-year-olds would also not violate the Second Amendment. On the other hand, a federal restriction of that sort would indeed be unconstitutional—since the federal government is a body of enumerated powers to begin with and the Second Amendment only reinforces this limitation regarding firearms. But is every single restriction on firearms at every level of government truly “unconstitutional”? As an opponent of all firearms laws of any kind, I can wish it were so, but I honestly don’t think that’s true. For example, states can prohibit convicts from having guns; the feds can’t—that is, I believe, the proper original reading of the Second Amendment, which is much more internally consistent than whatever doctrine we’d have to fabricate in light of the incorporation of the Bill of Rights.

All of this speaks to the problems with squaring a system of federalism, as ours supposedly is, with the incorporation principle. If we dig deep enough, I imagine we would see it exposes profound problems with the Constitution as it was written, even before the Civil War, as well as problems with the state itself.

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.

Anthony Gregory is a Research Fellow at the Independent Institute and author of the Independent books American Surveillance and The Power of Habeas Corpus in America.
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