Opinion: Supreme Court Wrong (and Right) About Violent Video Games

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kid playing video game

Credit: Corbis

Social conservatives rail against "activist judges," those supposedly liberal sorcerers in black robes who create rights out of thin air.

Nowhere does the Constitution explicitly grant women the legal right to have abortions. And let's face it: Despite their affinity for powdered wigs and ruffled shirts, most of the founding fathers probably found homosexuality icky.

So how can you possibly interpret the Constitution to protect the rights of those people?

Not particularly fond of abortion or gay people themselves, social conservatives claim the only way to interpret the Constitution is to crawl inside the heads of the founders and read it the way they would have read it had they not had the misfortune of dying 200 years ago.

That's difficult -- a lot has happened since those years.

The "strict constructionist" crowd faced a particularly sticky wicket last week when the U.S. Supreme Court decided kids have a right to buy, rent and play violent video games. In his dissenting opinion, Justice Clarence Thomas indulged in a little virtual reality himself, playing a game called "Founding Fathers Telepathy."

He said there is no way the founders would have conceived of a world where parents are not in complete control of their children. True enough; they would have been horrified at the idea. Of course, if we're going to be completely honest here, they would have been more horrified by a black man sitting on the Supreme Court.

Times change.

James Madison undoubtedly drafted the First Amendment to protect political expression and dissent. He never thought it would be used to defend your right to ogle French postcards, let alone vivisect your opponents in a video game.

However, as the ways we express ourselves expand, so too must the legal protection of that expression. That should include our inalienable right to disembowel computer-generated ninjas.

(Benjamin Franklin, by the way, would have had a stash of pornography that would make Hugh Hefner blush.)

Still, the Supreme Court was wrong. I don't say that as any kind of legal authority, I say that as a parent.

Justices struck down a California law that forbid minors from buying ultra-violent video games. I liked the California law. I also like laws that keep kids out of strip clubs, bars and porno shops. Parents should take most of the responsibility for shielding kids from the scummiest corners of adult life, but a little help from the legal system is nice, too.

But I do find something uplifting in the Supreme Court's decision: Clarence Thomas was right. The founders dwelled in a world where parents had absolute control over their children. Until very recently, children everywhere were considered the property of their parents -- with only the rights their parents deigned to give them.

Parents were free to beat them and force them to work in factories -- or they could just abandon them. Time was when you could dump your kid in an institution by simply telling authorities he was "incorrigible."

While some of the games kids play literally turn my stomach, and I fear the Supreme Court went too far in this particular case, I am glad to see the high court acknowledge that times have changed. We do not live in the time of the founding fathers and their values. Thank God.

"I am not an advocate for frequent changes in laws and constitutions," Thomas Jefferson wrote in 1816. "But laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times."

"We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

Those words are inscribed on the wall of the Jefferson Memorial in Washington, D.C.

Jefferson might find our boys more barbarous than civilized today, but acknowledging that children have rights is progress, indeed -- even if we don't all agree what those rights should be.

Related: UPDATE: Calif. Can't Ban Violent Video Game Sales

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Start by teaching him that it is safe to do so.