5 ms·

Consider a hypothetical religion that has worship which consists of something criminal (i.e. adherents kill for their god or something). I don't know the legal

by nsajko 6y ago

Consider a hypothetical religion that has worship which consists of something criminal (i.e. adherents kill for their god or something). I don't know the legal justification, but their freedom of religion would surely be trumped by my right to life, if an adherent tried to murder me :)

AdrianB1 6y ago
You completely failed to understand my comment: if the Constitutional freedom of religion is too broad why do you accept the Constitution to be ignored with such decisions instead of fixing the problem, the Constitutional text? In your example it is clear the problem is the Constitution text being too broad/generic. SCOTUS is not there to rewrite or cut the text, people voting can do that.
- nsajko 6y ago
  I think a constitution is meant to be broadly worded so it would not have to be changed often, though. Are you proposing to make the constitution just a regular old law?
  - AdrianB1 6y ago
    I am not looking for a solution for a problem that is not mine. I am looking to understand how people see the Constitution is ignored (not sure what is the right term) and feel fine about that. My line of thought is that everything in the Constitution can be ignored in the same way, so it is completely worthless and no right does really exist because it can be revoked by a law or government statute at any point. People loosing rights is a matter of principle, I could not care less about churches in California, I am not affected in any way.
    - kmonsen 6y ago
      It is not ignored, but there is a long practice of interpreting it and defining exactly what it means. You have to spend some effort here in understand it and how it has changed through history instead of expecting to be able to just read the law and fully understand what it means.
      - AdrianB1 6y ago
        Then the law is a failure; if it is written in such a way that regular people cannot understand it (because it does not mean what it says?) and it needs to be "interpreted", then the law failed because it is not what it was written, but what the people want to interpret it based on their own interests: this leads to corruption. In the same logic, Pythagoras' theorem should be interpreted because it is very old, it had a different meaning when it was written and we need to adapt it to current realities. For example, it should be restricted to triangles with less than 100 inches on the longest side; anyone that disagrees must show a legitimate need for having bigger triangles and even then, the theorem needs to respect criminal laws or the country. Or, as an Australian Prime minister said, "The laws of mathematics are very commendable, but the only law that applies in Australia is the law of Australia." /s
        nsajko 6y ago
        I think your point is basically that you want human law to be as clear, definite, unambiguous as scientific theories or mathematical proofs should be. I think this makes you an extremist legal formalist/textualist. Firstly, I think your reasoning is slightly fallacious: it seems you may be implicitly concluding that features that are useful for mathematics and science would be useful for law, too, just because of their effectiveness when applied to math or science. While I agree that lawmakers are too often too sloppy, with many laws being unnecessarily ambiguous; I disagree with your supposed goal. The first problem that comes to mind is that not even mathematics is done in formal languages, but I think much deeper issues are at hand here. It is that semantics are hard, even when the grammar is unambiguous. I found a relevant quote from a 1881 book by a future SCOTUS justice (Holmes), The Common Law. This is the very beginning of the book: The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. These Wikipedia pages might be interesting: * https://en.wikipedia.org/wiki/The_Common_Law_(Holmes) https://en.wikipedia.org/wiki/The_Common_Law_(Holmes) * https://en.wikipedia.org/wiki/Philosophy_of_law https://en.wikipedia.org/wiki/Philosophy_of_law * https://en.wikipedia.org/wiki/Jurisprudence https://en.wikipedia.org/wiki/Jurisprudence If you want to get more "practical", try thinking about the real problems that Jefferson & co. would have had trying to express the Constitution, Bill of rights, or even more mundane laws as you would like. It's not just that there was no Lojban or Ithkuil back then and math was less developed, even today the expertise required simply does not exist, and it is not clear if what you wish is even possible. I want to say that, although I disagree with you, thinking about the questions you raised has been a rewarding experience for me and I wish you luck in finding somebody smarter and/or more knowledgeable in the philosophy of law than me that you could discuss this with. Although, you may need to adjust your attitude to be less sour if you want more discussion, it will be more pleasant for other people if you manage to do that (I know that's difficult). I have a hunch you may also find some answers in science/speculative fiction, but, sadly, I can not remember a relevant work right now. I would like it if you could tell me if you get some interesting conclusions down the road.
- kmonsen 6y ago
  There are many parts of the constitution both parties would like to improve but that is not possible in the current environment. Conditions are in general meant to be broad so the last for a long time, and congress can implement laws around the details. The Supreme Court in the us can strike down laws if they believe they are counter to the constitution.
- gamblor956 6y ago
  The language of the First Amendment is not as broad as you make it out to be. You are arguing a straw man that doesn't exist.
  - AdrianB1 6y ago
    I quoted the text already a few times; it is broad enough to include free practice. Do you disagree?
    - gamblor956 6y ago
      Yes, I disagree. Free Exercise has never meant "do whatever you want" because that would have rendered all other laws moot. The Reynolds case has a good discussion of what was going on in the heads of the BOR convention. In a nutshell, religion was viewed as "beliefs" not "actions." (There is a letter from Jefferson on this point.) So the free exercise of religion was understood to mean the freedom to believe whatever you wanted to believe, not whatever you wanted to do. Modern First Amendment law is actually broader than the BOR...religious practice is considered subject to First Amendment protections, but like speech, is subject to extremely limited restrictions.
      - AdrianB1 6y ago
        So what is the meaning of "free exercise"? What was meant 230 years ago? In plain English, that text was not written by aliens in a rare Klingonian dialect and "interpreted" by Ferengi looking for some profit$$$. Free exercise for almost any religion includes going to the places or worship, without restrictions. At the time the article was written, there was no video conferencing so it was definitely considering going to the church as part of exercising the religion.
        gamblor956 6y ago
        Free exercise for almost any religion includes going to the places or worship, without restrictions. At the time the article was written, there was no video conferencing so it was definitely considering going to the church as part of exercising the religion. That's not part of the free exercise clause, that's part of the establishment clause. Yes, it's confusing. That's why lawyers get paid the big bucks: to spend days going through the laws, cases, and volumes of written literature on complex topics like this.

by nsajko 6y ago

AdrianB1 6y ago

You completely failed to understand my comment: if the Constitutional freedom of religion is too broad why do you accept the Constitution to be ignored with such decisions instead of fixing the problem, the Constitutional text? In your example it is clear the problem is the Constitution text being too broad/generic. SCOTUS is not there to rewrite or cut the text, people voting can do that.

nsajko 6y ago
I think a constitution is meant to be broadly worded so it would not have to be changed often, though. Are you proposing to make the constitution just a regular old law?
- AdrianB1 6y ago
  I am not looking for a solution for a problem that is not mine. I am looking to understand how people see the Constitution is ignored (not sure what is the right term) and feel fine about that. My line of thought is that everything in the Constitution can be ignored in the same way, so it is completely worthless and no right does really exist because it can be revoked by a law or government statute at any point. People loosing rights is a matter of principle, I could not care less about churches in California, I am not affected in any way.
  - kmonsen 6y ago
    It is not ignored, but there is a long practice of interpreting it and defining exactly what it means. You have to spend some effort here in understand it and how it has changed through history instead of expecting to be able to just read the law and fully understand what it means.
    - AdrianB1 6y ago
      Then the law is a failure; if it is written in such a way that regular people cannot understand it (because it does not mean what it says?) and it needs to be "interpreted", then the law failed because it is not what it was written, but what the people want to interpret it based on their own interests: this leads to corruption. In the same logic, Pythagoras' theorem should be interpreted because it is very old, it had a different meaning when it was written and we need to adapt it to current realities. For example, it should be restricted to triangles with less than 100 inches on the longest side; anyone that disagrees must show a legitimate need for having bigger triangles and even then, the theorem needs to respect criminal laws or the country. Or, as an Australian Prime minister said, "The laws of mathematics are very commendable, but the only law that applies in Australia is the law of Australia." /s
      - nsajko 6y ago
        I think your point is basically that you want human law to be as clear, definite, unambiguous as scientific theories or mathematical proofs should be. I think this makes you an extremist legal formalist/textualist. Firstly, I think your reasoning is slightly fallacious: it seems you may be implicitly concluding that features that are useful for mathematics and science would be useful for law, too, just because of their effectiveness when applied to math or science. While I agree that lawmakers are too often too sloppy, with many laws being unnecessarily ambiguous; I disagree with your supposed goal. The first problem that comes to mind is that not even mathematics is done in formal languages, but I think much deeper issues are at hand here. It is that semantics are hard, even when the grammar is unambiguous. I found a relevant quote from a 1881 book by a future SCOTUS justice (Holmes), The Common Law. This is the very beginning of the book: The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. These Wikipedia pages might be interesting: * https://en.wikipedia.org/wiki/The_Common_Law_(Holmes) https://en.wikipedia.org/wiki/The_Common_Law_(Holmes) * https://en.wikipedia.org/wiki/Philosophy_of_law https://en.wikipedia.org/wiki/Philosophy_of_law * https://en.wikipedia.org/wiki/Jurisprudence https://en.wikipedia.org/wiki/Jurisprudence If you want to get more "practical", try thinking about the real problems that Jefferson & co. would have had trying to express the Constitution, Bill of rights, or even more mundane laws as you would like. It's not just that there was no Lojban or Ithkuil back then and math was less developed, even today the expertise required simply does not exist, and it is not clear if what you wish is even possible. I want to say that, although I disagree with you, thinking about the questions you raised has been a rewarding experience for me and I wish you luck in finding somebody smarter and/or more knowledgeable in the philosophy of law than me that you could discuss this with. Although, you may need to adjust your attitude to be less sour if you want more discussion, it will be more pleasant for other people if you manage to do that (I know that's difficult). I have a hunch you may also find some answers in science/speculative fiction, but, sadly, I can not remember a relevant work right now. I would like it if you could tell me if you get some interesting conclusions down the road.
kmonsen 6y ago
There are many parts of the constitution both parties would like to improve but that is not possible in the current environment. Conditions are in general meant to be broad so the last for a long time, and congress can implement laws around the details. The Supreme Court in the us can strike down laws if they believe they are counter to the constitution.
gamblor956 6y ago
The language of the First Amendment is not as broad as you make it out to be. You are arguing a straw man that doesn't exist.
- AdrianB1 6y ago
  I quoted the text already a few times; it is broad enough to include free practice. Do you disagree?
  - gamblor956 6y ago
    Yes, I disagree. Free Exercise has never meant "do whatever you want" because that would have rendered all other laws moot. The Reynolds case has a good discussion of what was going on in the heads of the BOR convention. In a nutshell, religion was viewed as "beliefs" not "actions." (There is a letter from Jefferson on this point.) So the free exercise of religion was understood to mean the freedom to believe whatever you wanted to believe, not whatever you wanted to do. Modern First Amendment law is actually broader than the BOR...religious practice is considered subject to First Amendment protections, but like speech, is subject to extremely limited restrictions.
    - AdrianB1 6y ago
      So what is the meaning of "free exercise"? What was meant 230 years ago? In plain English, that text was not written by aliens in a rare Klingonian dialect and "interpreted" by Ferengi looking for some profit$$$. Free exercise for almost any religion includes going to the places or worship, without restrictions. At the time the article was written, there was no video conferencing so it was definitely considering going to the church as part of exercising the religion.
      - gamblor956 6y ago
        Free exercise for almost any religion includes going to the places or worship, without restrictions. At the time the article was written, there was no video conferencing so it was definitely considering going to the church as part of exercising the religion. That's not part of the free exercise clause, that's part of the establishment clause. Yes, it's confusing. That's why lawyers get paid the big bucks: to spend days going through the laws, cases, and volumes of written literature on complex topics like this.