I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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I’m not positive, but I think Justice Thomas has written the strangest Supreme Court opinion I ever read

Yesterday in the electronic game case, Justice Thomas released a dissent going into great details about what he thought the founding father’s views of parental/child relations were.

Anderson (and others) keyed in on the opening references to the parenting styles of Cotton Mather and the Puritans.  Reading through that passage, I thought that he was trying out a version of the illusion that the founding fathers intended to establish a Christian state.

I hope this is not an indication of things to come.

There’s also some pretty odd reasoning– that the Puritans were so focused on parental authority that they didn’t believe in godparents!  Well, yes, but I’ll bet those Anglicans down in Virginia allowed for godparents, and was this true all the way through the 1790s?  And what the heck does this have to do with anything anyway?

Then there’s an odd side-trip into Rousseau and the notion that children were a blank slate.  Parents were supposed to fill that slate, Thomas contends.  Just parents! And so no one else has a right to talk to children!  (Throughout the opinion, my reaction was to wonder why he thought his conclusion followed from any of the “evidence” he’d assembled).

But that leaves out what to me was the strangest part of all, the passage where it descends into a Dickensian nightmare of child labor, when one of a parent’s rights was to place their children in indentured servitude and claim all of the product of their labor.

[T]he law entitled parents to “the custody of their [children],” “the value of th[e] [children’s] labor and services,” and the “right to the exercise of such discipline as may be requisite for the discharge of their sacred trust.” Id., at *193, *203. Children, in turn, were charged with “obedience and assistance during their own minority, and gratitude and reverance during the rest of their lives.” Id., at *207.

Thus, in case after case, courts made clear that parents had a right to the child’s labor and services until the child reached majority. In 1810, the Supreme Judicial Court of Massachusetts explained, “There is no question but that a father, who is entitled to the services of his minor son, and for whom he is obliged to provide, may, at the common law, assign those services to others, for a consideration to enure to himself.” Day v. Everett, 7 Mass. 145, 147; see also Benson v. Remington , 2 Mass. 113, 115 (1806) (opinion of Parsons, C. J.) (“The law is very well settled, that parents are under obligations to support their children, and that they are entitled to their earnings”). Similarly, the Supreme Court of Judicature of New Hampshire noted that the right of parents to recover for the services of their child, while a minor, “cannot be contested.” Gale v. Parrot , 1 N. H. 28, 29 (1817). And parents could bring tort suits against those who knowingly enticed a minor away from them. See, e.g., Kirkpatrick v. Lockhart , 2 Brev. 276 (S. C. Constitutional Ct. 1809); Jones v. Tevis , 4 Litt. 25 (Ky. App. 1823).

I read that wondering whether Justice Thomas understood that the term for this sort of arrangement is “child slavery.”

Did Justice Thomas really mean to invoke Oliver Twist and the Beadle?

While the phrase “the constitution is not a suicide pact” is usually invoked for the other side of free speech debates, these kinds of appeals to original intent are what brings such thoughts to my mind.

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