More on Sandefur on Jeffersonian Ideals:

Sandefur has some excellent posts responding to Southern Appeal’s Owen Courreges’ attacks on his originalist defense of Lawrence. He rightly notes that those who cite Jefferson’s participation in rewriting the Virginia criminal code as “debunking” the notion that Jeffersonian principles could have lead to the outcome in the Lawrence case are not putting that statute into the appropriate context that is needed.

There are strong grounds to believe that when Jefferson referenced “sodomy” he was not referring to two adults having completely consensual relations in private—that “sodomy” likely meant non-consensual behavior generally, and non-consensual behavior with underaged boys particularly.

I too have written before that the overall context of Jefferson’s bill —that he notes “sodomy” to be equally unnatural to “bestiality," but then decriminalizes the latter and groups “sodomy” with rape—suggests that in proscribing "sodomy," he did not have in mind “sending armed agents of the state into peoples’ bedrooms to drag their loved ones from their arms.”

But even still, Jefferson was one who believed that as future generations acquire more knowledge, their opinions would change and become more enlightened, and that “laws and institutions” must change with evolving circumstances to “keep pace with the times.” Specifically, the notion that homosexuality is more similar or analogous to bestiality than it is to heterosexuality is an obvious error in reason. And if Jefferson were alive today and had the chance to observe folks in long term committed same sex relations, I’m sure he would agree every bit as much as he would agree that Albert Einstein’s science corrected the errors of Newton's.

And it’s also important to keep in mind while Jefferson did integrate some of his “reforms” into this bill (making it closer to his ideal preferences) that statute by no means represented an “ideal Jeffersonian criminal code,” but rather was, as Sandefur has written, “a revision of a preexisting legal code, and which was written in order to pass a legislature full of men who were not exactly in line with him intellectually.” Jefferson did tell us that his Virginia Statute for Religious Freedom represented his ideal thoughts on how religion and government should be situated with one another—he thought that Statute to be among his greatest accomplishments, on par with his drafting of the Declaration of Independence. There is no evidence that he thought his participation in rewriting the criminal code—a statute which punishes “witchcraft, conjuration, enchantment, or sorcery, or…pretended prophecies…by dunking and whipping, at the discretion of a jury, not exceeding fifteen stripes”—to be as important a feat in his life as his drafting of the Virginia Statute for Religious Freedom or the Declaration of Independence. Undoubtedly, he didn’t.