The Back Alley Archives

I do not. I think there were probably several reasons for said gray areas: 1) political compromises to build consensus 2) the inevitability of unintended consequences and unanticipated externalities and 3) they knew of the likely disagreements and thought they should be resolved in ways other than delineation in the Constitution.

I agree with all points AA. So, my question is, if the framers knew there were gray areas, wouldn't they have known that people would have to make decisions to fill in the gaps? If they didn't want that to happen then they would have set in stone every word and filled in every crack? I think they wanted the constitution to be a fluid document that could be interpreted different ways during different times. Just my opinion though. I am no lawyer nor am I well versed in constitution law or thinkings.

Do you think it is a coincidence that the constitution was written with lots of gray areas in it?

I think it was done so as not to piss off as many people as possible. Remember, they had to get this ratified in a very divided country. That, and none of the framers could unanimously agree on anything other than they all hated Britain. Even that was debatable.

I agree with all points AA. So, my question is, if the framers knew there were gray areas, wouldn't they have known that people would have to make decisions to fill in the gaps? If they didn't want that to happen then they would have set in stone every word and filled in every crack? I think they wanted the constitution to be a fluid document that could be interpreted different ways during different times. Just my opinion though. I am no lawyer nor am I well versed in constitution law or thinkings.

Your view is widely held in the world of Constitutional interpretation--people go so far as to call the document a "living" Constitution. I think there are certain ways that such an interpretation is helpful, but I also think it's too simplistic because if it were intended for the Constitution to be interpreted in this way, I believe it would have been spelled out. That's a big deal, to say the words we are governed by aren't set in stone and are up for interpretation and it seems like the framers should have included that. They did provide an amendment process, but nothing about it being a living document.

So yes, I think there are times where we must interpret gray areas, but even those gray areas are explicitly given limits we must respect.

If the constitution is set in stone then why, just recently, was the SC hearing arguments on gun rights? Wouldn't that have already been set in stone?

Where is Doc at? I want to read up more on this topic. Do you have any good websites or books that you would recommend? i would like to read opposing view points and reasoning on both sides of this issue. For some reason, I am intrigued.

One reason for such a decision (on an issue that seemingly should have been settled long ago) is that as a society we keep coming up with new ways to regulate all parts of life. As the law evolves, the interpretation of the Constitution must evolve through more fine interpretations by SCOTUS.

If the constitution is set in stone then why, just recently, was the SC hearing arguments on gun rights? Wouldn't that have already been set in stone?

Where is Doc at? I want to read up more on this topic. Do you have any good websites or books that you would recommend? i would like to read opposing view points and reasoning on both sides of this issue. For some reason, I am intrigued.

Here I am.

To answer your first question, the Supreme Court was hearing arguments on the Second Amendment because it hadn't really ruled on it since 1939 (even then, the Miller case did more to add to the confusion than clarify the position). Prior to 1939, the Court had NEVER issued any kind of ruling on the Second Amendment.

If you read the opinions (or the briefs or the summaries of the briefs), the arguments in Heller focused largely on the Framers' original intent because there was no real authority on the Second Amendment. So, in a sense, the case was really an exercise in originalism, though I doubt that the dissenting judges would characterize it that way.

That's a big reason why I'm so interested in Second Amendment law - it's been neglected by the Supreme Court for centuries while lower courts and legislatures slowly eroded what the Framers considered to be a fundamental right.

But enough about the Second Amendment. The Wikipedia page for "Living Constitution" gives a pretty good summary of the views, both pro- and con-. I found Thomas Jefferson's excerpted remarks interesting:

Thomas Jefferson wrote, "I am not an advocate for frequent changes in laws and constitutions, 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." [12] But he also warned against treating the Constitution as "a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please."[13] Jefferson's understanding of how the Constitution should be interpreted is made clear in a letter he wrote March 27, 1801, after assuming the Presidency, "The Constitution on which our union rests, shall be administered by me according to the safe and honest meaning contemplated by the plain understanding of the people of the United States, at the time of its adoption,—a meaning to be found in the explanations of those who advocated (it)...These explanations are preserved in the publications of the time, and are too recent in the memories of most men to admit of question."[14]

So, it appeared as though even Jefferson was a bit conflicted!

I have spent hours reading different articles on this. i am surprised that even some of the framers weren't sure how to interpret the constitution, even as they were writing it. One thing is for sure, there are two very distinct factions on each side of this issue.

even some of the framers weren't sure how to interpret the constitution, even as they were writing it

This is why it's so sad that we get into ridiculous political fights trying to sway public opinion with 7 word soundbites. It's too damn complicated to try to reduce the issues like we do.

I honestly went into reading about it with an open mind and just trying to understand the different lines of thinking. i have no better idea now then I did 50 articles and three hours of reading later. Some of the thoughts on it really speak to the internal conflicts that some of the framers were dealing with. I find this fascinating that the pillar of our democracy was set up like this without giving mucj insight as too their intent or interpretations. I have to wonder if it was deliberate. With all of the forethought put into the constitution and subsequently the bill of rights, I can't believe that it was merely a coincidence.

I find this fascinating that the pillar of our democracy was set up like this without giving much insight as too their intent or interpretations.

Our founding fathers didn't set us up as a democracy, and we aren't one now. We are a representative republic. I hate it that the word "democracy" gets thrown around so casually. It speaks to the motives of the people that founded our institutions of government education. We are a representative republic.

If we are splitting hairs then I suppose you are partially correct. While we are not a true "democracy" we do have tendencies that push us in that direction.

While I agree that the framers were cautious about being a true democracy. There are lots of examples that we are somewhere in between.

Kyle, I think we all understood what Eric meant.

Eric, I don't know if it was deliberate in the "Oh, let's keep this vague so we can have a living document" kind of way, but there were so many conflicts and interpretations going around, perhaps they just said, "Fuck it. Let's see if it lasts and let future generations figure it out."

I mean, they'd been through it once before with the Articles of Confederation, right? Who wants to keep going back and starting from scratch over and over again?

Kyle, I think we all understood what Eric meant.

Eric, I don't know if it was deliberate in the "Oh, let's keep this vague so we can have a living document" kind of way,[/size] but there were so many conflicts and interpretations going around, perhaps they just said, "Fuck it. Let's see if it lasts and let future generations figure it out."

I mean, they'd been through it once before with the Articles of Confederation, right? Who wants to keep going back and starting from scratch over and over again?

Agreed.

It seems that many were frustrated once they realized that the Articles were a failure and tried to make sure that it didn't happen again. Although, some thought the constitution was still a failure on some scale, hence the addition of the bill of rights after the fact. They thought most things were implied and that wasn't effective enough.

I'm pretty sure they already had some of the bill of rights written at the same time they were working on the Constitution itself. Some compromises only came about because of certain inclusions in the bill of rights, I believe.

I thought the bill of rights came after, well after for that matter, at the request of some of the framers and notably Thomas Jefferson. I could be wrong, though.

^^ It was around the same time, but only after the Constitution was already drafted and being considered for ratification. Many states would not have ratified it, if not for the Bill of Rights.

Wasn't the constitution ratified like 2 or 3 years before the BOR? What would have stopped them from not writing it? Fragile state maybe?

I think you are right. A Bill of Rights was promised to the Anti-Federalists and other folks who had reservations about the Constitution during the Philadelphia Convention. There was some debate as to whether the Bill or Rights should be incorporated into the text of the Constitution or introduced through the Amendment process, but I think it was pretty clear that there would absolutely be a Bill of Rights to protect against the excesses of a powerful federal government.

Ultimately, the Constitution was ratified in 1789 and the BoR in 1791.

I think you are right. A Bill of Rights was promised to the Anti-Federalists and other folks who had reservations about the Constitution during the Philadelphia Convention. There was some debate as to whether the Bill or Rights should be incorporated into the text of the Constitution or introduced through the Amendment process, but I think it was pretty clear that there would absolutely be a Bill of Rights to protect against the excesses of a powerful federal government.

Ultimately, the Constitution was ratified in 1789 and the BoR in 1791.

Somewhere, my 6th grade social studies teacher in smiling. Or is it my 10th grade American history teacher? Fuck it, someone is smiling.

Nice work

Marty and I have voted. We've never voted early. I felt weird voting early.....voted by absentee ballot. I will miss my sticker also. :-(

Not making light at all with the sticker statement. If my vote gets lost or not counted, I would have a major meltdown. That's how much it means to me.

Did you mail your absentee ballot in? When I voted by absentee ballot in the past, I always mailed mine in with a return receipt. I least I knew someone had to sign for it.

If you are a citizen, you are a citizen and as such, you have the right to vote. There are plenty of stupid and/or forgetful Americans on all sides, but they are still Americans, and so long as they aren't convicted criminals, have the right/duty/privilege to vote

I'm pretty sure that no one has a right to vote in a federal election. Wasn't that the decision the SC came to in 2000?

Here's, in my opinion, the most relevant SCOTUS decision on the matter...

Reynolds v. Sims (1964)
To the extent that a citizen's right to vote is debased, he is that much less a citizen. The weight of a citizen's vote cannot be made to depend on where he lives. . . . A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. . . .

Neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. . . . Citizens, not history or economic interests, cast votes. People, not land or trees or pastures, vote. As long as ours is a representative form of government, and our legislators are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.

It took me about the same amount of time. I'll never understand people who are willing to wait in line for three hours. I don't care how large of a city you live in, there are always times that you can be in and out in less than 20 minutes. The only way I'd stand in line for more than that is if I lived in a very rural area and drove almost an hour just to vote...that, or if I waited until the very last minute and was forced to stand in line if I wanted to cast my vote.

well we don't have early voting here and the wait has been an hour and a half minimum at my polling station since the polls opened at 6 am this morning. i'm sure they'll be that way till they close at 7 tonight.