Thomas Jefferson once wrote a fairly long letter discussing the necessity of freedom of religion, pointing out that what another person believes which is different than what I believe, “neither breaks my bones, nor picks my pockets.” This presumes a sort of logic that offense, sensibilities, and wide agreement would not be protected by the state. Minus harm, the state will not get involved.
But while it’s clear that Jefferson was clearly and specifically talking about religious diversity, we can say that there is an underlying logic or ‘test’ which we could perform, which is independent of circumstance. We can view it like a formula against which we can apply any particular set of variables and it will return an answer, regardless of whether such a variable would ever have been thinkable at the time. Does a homosexual harm me in any sense beyond my sensibilities? No. Thereby, legislating on homosexuality is not an interest of the state.
To pass into law, a certain statement had to have some logic underlying it, and that logic had to be flexible enough to convince and not offend a majority of those who voted for it. Should you take that logic out and apply new variables to it, whatever that answer is, is what the legislators would - by logic if not by moral measure - have accepted.
Does this method map to any of the major theories of Constitutional theory? Or is it too distantly removed from all of them?
I think that the problem lies in defining “harm”. In your example of legislating on homosexuality, I have no doubt that there are people who could argue that it does cause, or has the potential to cause harm to them or to their families. We can argue that it is nonsense, but they will come up will all kinds of rebuttals.
Politics is often about appeasing pressure groups and some are very powerful - especially if legislators agree with them.
I think a better example is Christian communion … the drinking age is 21 for reasons completely separate from repressing Christianity … Christians are allowed to believe 10-years-old should be given wine at communion, Christians are allowed to advocate allowing 10-year-olds to have wine at communion … however, I was given grape juice at a small rural Methodist church growing up … here we have a religious practice that is outlawed for reasons that have nothing to do with repressing the religion … freedom of religion and domestic tranquility are both preserved …
Certainly, and in defining ‘sensibilities’, and that’s where both sides bring in experts and testimony. But it does at least establish some sort of criteria for judgment, even if it’s a bit squishy.
Though, obviously, my question wasn’t about the example itself, just whether taking the logic that would seem to underly a particular text, and applying it to new scenarios is one of the methodologies of constitutional interpretation. (I figured that using one of the Amendments would have been too contentious to use as an example.)
Can I argue that wanton misuse of the common ellipsis does me harm? It’s like I’m watching The Beast of Yucca Flats in here.
Anyway, a substantial body of Catholics give children wine. Their argument that it’s the Blood of Christ and, therefore, not alcoholic is legally moot due to carve-outs in the law, much like similar carve-outs which existed during Prohibition. (Because do you really think the Catholics were going to go dry just because alcohol had, generally, been banned? Really?)
Anyway, we can justify those carve-outs on a basis ultimately similar to the one the OP proposed, which is that the social ills which banning minors from drinking are meant to prevent don’t occur as a result of children drinking communion wine: It’s too small to be intoxicating, so there’s no health detriment, and the context isn’t one likely to lead to the children acting criminally, so there’s no social detriment.
I did not know Catholics give wine to the children … thanks for that information … my only experience was with Methodists … and specific Methodists at that … not exactly the most wide-reaching of Christian experience to be sure …
Post on a message board … flag on the Moon … how did they get there? … a child sips wine … a Methodist crushes a grape … a post becomes a riff … the wheels of progress go round and round … round and round …
I second this. Please just use a single period, watchwolf, placed right after the end of your sentences.
I’m pretty sure you didn’t always use ellipses, so I know you know how. Writing that way only harms your point by being distracting to what you’re actually saying. I often actually just move on to the next post.
Unsure what is meant by these last two paragraphs.
T.J.'s letters that you mention are not part of the Constitution, so I think the incorporation of their intent into a strict interpretation of the Constitution would be problematic for “literal” interpretations.
I think he’s asking if there is a known or named theory of constitutional jurisprudence that would align with Jefferson’s views? Like “textualism” or “originalism”? That, or a political theory like “Hamiltonion” (though I guess that would just be “Jeffersonian” or just “liberal” as mentioned before).
No, as I said in my later post, I used Jefferson’s letter simply to avoid a debate on any particular section of the Constitution or its Amendments. I could just as easily have used a piece of text from a children’s novel that makes a moralistic decree of some form.
If we have a system of legalistic interpretation which takes such a moralistic decree, reduces it down to an abstract, widely applicable logical statement, and then applies the logic to new scenarios, what system of Constitutional interpretation would this system most closely resemble, if any?