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To be sure, there are at least a few problems with the approach of drawing upon the Framers for guidance with respect to the issues of the day. First, the Framers did not reach consensus on all matters. The famous rivalry between the Alexander Hamilton, a staunch nationalist from New York who favored a strong federal banking system and central government, and Jefferson, a republican from Virginia who preferred an agrarian lifestyle and trusted the people to do right by American society, perhaps best illustrates the fact that the Framers themselves were not in lockstep as to the makeup of the American government. Second, the essence of the American constitutional design was not to provide definitive responses to all circumstances of American life, but rather set in motion a peaceful process by which those answers could be developed by way of democratic participation. The Constitution, historian Joseph Ellis noted, “did not resolve the long-standing political disagreements that existed,” but instead established a “context with which they could be argued out.” The Constitution, in short, did not offer substantive formalisms applicable to all situations, but rather supplied the procedural structure within which such answers could be formulated.

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Journal of Internet Law





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Law and Race Commons



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